- TXT
- PDF (PDF provides a complete and accurate display of this text.) Tip ?
111th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 111-427
======================================================================
IMPEACHMENT OF G. THOMAS PORTEOUS, JR., JUDGE OF THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
_______
March 4, 2010.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Conyers, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H. Res. 1031]
The Committee on the Judiciary, to whom was referred the
resolution (H. Res. 1031) impeaching G. Thomas Porteous, Jr.,
judge of the United States District Court for the Eastern
District of Louisiana, for high crimes and misdemeanors, having
considered the same, reports favorably thereon without
amendment and recommends that the resolution be agreed to.
I. THE RESOLUTION
H. Res. 1031
Impeaching G. Thomas Porteous, Jr., judge of the United
States District Court for the Eastern District of Louisiana,
for high crimes and misdemeanors.
In The House of Representatives
JANUARY 21, 2010
Mr. Conyers (for himself, Mr. Smith of Texas, Mr. Schiff,
Mr. Goodlatte, Ms. Jackson Lee of Texas, Mr. Sensenbrenner, Mr.
Delahunt, Mr. Daniel E. Lungren of California, Mr. Cohen, Mr.
Forbes, Mr. Johnson of Georgia, Mr. Gohmert, Mr. Pierluisi, and
Mr. Gonzalez) submitted the following resolution; which was
referred to the Committee on the Judiciary
Resolved, That G. Thomas Porteous, Jr., a judge of the
United States District Court for the Eastern District of
Louisiana, is impeached for high crimes and misdemeanors, and
that the following articles of impeachment be exhibited to the
Senate:
Articles of impeachment exhibited by the House of
Representatives of the United States of America in the name of
itself and all of the people of the United States of America,
against G. Thomas Porteous, Jr., a judge in the United States
District Court for the Eastern District of Louisiana, in
maintenance and support of its impeachment against him for high
crimes and misdemeanors.
ARTICLE I
G. Thomas Porteous, Jr., while a Federal judge of the
United States District Court for the Eastern District of
Louisiana, engaged in a pattern of conduct that is incompatible
with the trust and confidence placed in him as a Federal judge,
as follows:
Judge Porteous, while presiding as a United States district
judge in Lifemark Hospitals of Louisiana, Inc. v. Liljeberg
Enterprises, denied a motion to recuse himself from the case,
despite the fact that he had a corrupt financial relationship
with the law firm of Amato & Creely, P.C. which had entered the
case to represent Liljeberg. In denying the motion to recuse,
and in contravention of clear canons of judicial ethics, Judge
Porteous failed to disclose that beginning in or about the late
1980's while he was a State court judge in the 24th Judicial
District Court in the State of Louisiana, he engaged in a
corrupt scheme with attorneys, Jacob Amato, Jr., and Robert
Creely, whereby Judge Porteous appointed Amato's law partner as
a `curator' in hundreds of cases and thereafter requested and
accepted from Amato & Creely a portion of the curatorship fees
which had been paid to the firm. During the period of this
scheme, the fees received by Amato & Creely amounted to
approximately $40,000, and the amounts paid by Amato & Creely
to Judge Porteous amounted to approximately $20,000.
Judge Porteous also made intentionally misleading
statements at the recusal hearing intended to minimize the
extent of his personal relationship with the two attorneys. In
so doing, and in failing to disclose to Lifemark and its
counsel the true circumstances of his relationship with the
Amato & Creely law firm, Judge Porteous deprived the Fifth
Circuit Court of Appeals of critical information for its review
of a petition for a writ of mandamus, which sought to overrule
Judge Porteous's denial of the recusal motion. His conduct
deprived the parties and the public of the right to the honest
services of his office.
Judge Porteous also engaged in corrupt conduct after the
Lifemark v. Liljeberg bench trial, and while he had the case
under advisement, in that he solicited and accepted things of
value from both Amato and his law partner Creely, including a
payment of thousands of dollars in cash. Thereafter, and
without disclosing his corrupt relationship with the attorneys
of Amato & Creely PLC or his receipt from them of cash and
other things of value, Judge Porteous ruled in favor of their
client, Liljeberg.
By virtue of this corrupt relationship and his conduct as a
Federal judge, Judge Porteous brought his court into scandal
and disrepute, prejudiced public respect for, and confidence
in, the Federal judiciary, and demonstrated that he is unfit
for the office of Federal judge.
Wherefore, Judge G. Thomas Porteous, Jr., is guilty of high
crimes and misdemeanors and should be removed from office.
ARTICLE II
G. Thomas Porteous, Jr., engaged in a longstanding pattern
of corrupt conduct that demonstrates his unfitness to serve as
a United States District Court Judge. That conduct included the
following: Beginning in or about the late 1980's while he was a
State court judge in the 24th Judicial District Court in the
State of Louisiana, and continuing while he was a Federal judge
in the United States District Court for the Eastern District of
Louisiana, Judge Porteous engaged in a corrupt relationship
with bail bondsman Louis M. Marcotte, III, and his sister Lori
Marcotte. As part of this corrupt relationship, Judge Porteous
solicited and accepted numerous things of value, including
meals, trips, home repairs, and car repairs, for his personal
use and benefit, while at the same time taking official actions
that benefitted the Marcottes. These official actions by Judge
Porteous included, while on the State bench, setting, reducing,
and splitting bonds as requested by the Marcottes, and
improperly setting aside or expunging felony convictions for
two Marcotte employees (in one case after Judge Porteous had
been confirmed by the Senate but before being sworn in as a
Federal judge). In addition, both while on the State bench and
on the Federal bench, Judge Porteous used the power and
prestige of his office to assist the Marcottes in forming
relationships with State judicial officers and individuals
important to the Marcottes' business. As Judge Porteous well
knew and understood, Louis Marcotte also made false statements
to the Federal Bureau of Investigation in an effort to assist
Judge Porteous in being appointed to the Federal bench.
Accordingly, Judge G. Thomas Porteous, Jr., has engaged in
conduct so utterly lacking in honesty and integrity that he is
guilty of high crimes and misdemeanors, is unfit to hold the
office of Federal judge, and should be removed from office.
ARTICLE III
Beginning in or about March 2001 and continuing through
about July 2004, while a Federal judge in the United States
District Court for the Eastern District of Louisiana, G. Thomas
Porteous, Jr., engaged in a pattern of conduct inconsistent
with the trust and confidence placed in him as a Federal judge
by knowingly and intentionally making material false statements
and representations under penalty of perjury related to his
personal bankruptcy filing and by repeatedly violating a court
order in his bankruptcy case. Judge Porteous did so by----
(1) using a false name and a post office box address
to conceal his identity as the debtor in the case;
(2) concealing assets;
(3) concealing preferential payments to certain
creditors;
(4) concealing gambling losses and other gambling
debts; and
(5) incurring new debts while the case was pending,
in violation of the bankruptcy court's order.
In doing so, Judge Porteous brought his court into scandal
and disrepute, prejudiced public respect for and confidence in
the Federal judiciary, and demonstrated that he is unfit for
the office of Federal judge.
Wherefore, Judge G. Thomas Porteous, Jr., is guilty of high
crimes and misdemeanors and should be removed from office.
ARTICLE IV
In 1994, in connection with his nomination to be a judge of
the United States District Court for the Eastern District of
Louisiana, G. Thomas Porteous, Jr., knowingly made material
false statements about his past to both the United States
Senate and to the Federal Bureau of Investigation in order to
obtain the office of United States District Court Judge. These
false statements included the following:
(1) On his Supplemental SF-86, Judge Porteous was
asked if there was anything in his personal life that
could be used by someone to coerce or blackmail him, or
if there was anything in his life that could cause an
embarrassment to Judge Porteous or the President if
publicly known. Judge Porteous answered `no' to this
question and signed the form under the warning that a
false statement was punishable by law.
(2) During his background check, Judge Porteous
falsely told the Federal Bureau of Investigation on two
separate occasions that he was not concealing any
activity or conduct that could be used to influence,
pressure, coerce, or compromise him in any way or that
would impact negatively on his character, reputation,
judgment, or discretion.
(3) On the Senate Judiciary Committee's `Questionnaire
for Judicial Nominees', Judge Porteous was asked
whether any unfavorable information existed that could
affect his nomination. Judge Porteous answered that, to
the best of his knowledge, he did `not know of any
unfavorable information that may affect [his]
nomination'. Judge Porteous signed that questionnaire
by swearing that `the information provided in this
statement is, to the best of my knowledge, true and
accurate'.
However, in truth and in fact, as Judge Porteous then well
knew, each of these answers was materially false because Judge
Porteous had engaged in a corrupt relationship with the law
firm Amato & Creely, whereby Judge Porteous appointed Creely as
a `curator' in hundreds of cases and thereafter requested and
accepted from Amato & Creely a portion of the curatorship fees
which had been paid to the firm and also had engaged in a
corrupt relationship with Louis and Lori Marcotte, whereby
Judge Porteous solicited and accepted numerous things of value,
including meals, trips, home repairs, and car repairs, for his
personal use and benefit, while at the same time taking
official actions that benefitted the Marcottes. As Judge
Porteous well knew and understood, Louis Marcotte also made
false statements to the Federal Bureau of Investigation in an
effort to assist Judge Porteous in being appointed to the
Federal bench. Judge Porteous's failure to disclose these
corrupt relationships deprived the United States Senate and the
public of information that would have had a material impact on
his confirmation.
Wherefore, Judge G. Thomas Porteous, Jr., is guilty of high
crimes and misdemeanors and should be removed from office.
II. INTRODUCTION
The House Committee on the Judiciary, in conjunction with
its duly authorized ``Task Force on Judicial Impeachment,'' has
conducted an investigation into the conduct of United States
District Court Judge Gabriel Thomas Porteous, Jr., (``Judge
Porteous'') and has determined, for the reasons set forth in
this Report, that Judge Porteous's impeachment is warranted as
a factual matter, fully supported by the Constitution, and is
consistent with precedent.
III. JUDGE G. THOMAS PORTEOUS, JR.
Judge Porteous was born December 14, 1946. He grew up in
the New Orleans area and attended Louisiana State University
both as an undergraduate and for law school. He graduated from
law school in 1971.
From 1971 to 1973, Judge Porteous was Special Counsel to
the Office of the Louisiana Attorney General. He then served as
an Assistant District Attorney from approximately 1973 through
1984. During that time period, Assistant District Attorneys
could also hold outside employment. Thus, during some portion
of this time, Judge Porteous was a law partner of Jacob Amato,
Jr., at the law firm Edwards, Porteous & Amato. Attorney Robert
Creely also worked at this firm.
Judge Porteous was elected judge of the 24th Judicial
District Court in the State of Louisiana in 1984 and remained
in that position until October 1994. In August 1994, Judge
Porteous was nominated by President Clinton to be a United
States District Court Judge for the Eastern District of
Louisiana. His confirmation hearing was held on October 6,
1994. He was confirmed by the Senate on October 7, 1994,
received his commission on October 11, 1994, and was sworn in
on October 28, 1994.
Judge Porteous was married in 1969 to Carmella Porteous,
who passed away on December 22, 2005.
IV. PROCEDURAL BACKGROUND
In or about late 1999, the Department of Justice
(occasionally referenced as the ``Department'' or ``DOJ'') and
the Federal Bureau of Investigation (the ``FBI'') commenced a
criminal investigation of Judge Porteous. The criminal
investigation continued for several years, and ultimately ended
in early 2007, without an indictment.\1\
---------------------------------------------------------------------------
\1\Among the reasons the Department gave in declining prosecution
were that some of the conduct at issue was barred by the statue of
limitations, and that some of the demonstrably false statements may not
have been ``material'' as a matter of law. Letter from John C. Keeney,
Deputy Assistant Attorney General, U.S. Department of Justice, to Hon.
Edith H. Jones, Chief Judge, U.S. Court of Appeals for the Fifth
Circuit, Re: Complaint of Judicial Misconduct Concerning the Honorable
G. Thomas Porteous, Jr., May 18, 2007 (hereinafter ``DOJ Complaint
Letter'') at 1 (Ex. 4).
---------------------------------------------------------------------------
The evidentiary materials have been identified as HP [House Porteous]
Exhibit numbers by the Task Force Staff, and the documents are cited as
``(Ex. [#]).'' Certain publicly available documents, such as House and
Committee Resolutions, or pleadings in connection with litigation, have
also been marked as exhibits for ease of reference. The testimony cited
in this Report consists of the following: 1) testimony of witnesses
before the House Impeachment Task Force during one of four hearings
(either on November 17-18, 2009 (Hearing I), December 8, 2009 (II),
December 10, 2009 (III) or December 15, 2009 (IV)), cited as
``[Witness] TF Hrg. [I, II, III or IV] at [page];'' 2) testimony of
witnesses before the Fifth Circuit Special Investigative Committee
Hearing in October 1997, cited as ``[Witness] 5th Cir. Hrg. at
[page],'' or otherwise referencing the speaker if the person quoted is
not the sworn witness; 3) testimony of witnesses before the Federal
grand jury, cited as ``[Witness] GJ at [page];'' and 4) deposition
testimony taken by Task Force Staff, in the late summer and fall of
2009 and early 2010, cited as ``[Witness] Dep. at [ ].'' Facts that are
undisputed--such as the date Judge Porteous was nominated or
confirmed--are not always cited. Several witnesses were interviewed by
Task Force Staff but were not deposed. Every effort has been made in
this Report to rely on documentary materials or testimony under oath;
however, on a few occasions, references are made to Task Force Staff
interviews where a deposition was not conducted.
In a letter dated May 18, 2007, the Department submitted a
formal complaint of judicial misconduct to the Honorable Edith
H. Jones, Chief Judge, United States Court of Appeals for the
Fifth Circuit. The DOJ Complaint Letter described numerous
instances of alleged misconduct by Judge Porteous that
potentially related to his fitness as a judge.\2\ The alleged
misconduct included soliciting and accepting things of value
from litigants, attorneys, and other interested persons (such
as the owners of a bail bonds company) with matters before him.
The misconduct was alleged to have commenced while Judge
Porteous was a State judge serving on the 24th Judicial
District Court in Jefferson Parish, Louisiana (from 1984 to
1994), and to have continued while he was a Federal district
judge. In addition, the Department also set forth information
that Judge Porteous, while a Federal judge, made false
statements and engaged in other dishonest conduct in connection
with his personal bankruptcy.
---------------------------------------------------------------------------
\2\DOJ Complaint Letter (Ex. 4).
---------------------------------------------------------------------------
Upon receipt of the DOJ Complaint Letter, the Fifth Circuit
appointed a Special Investigatory Committee (the ``Special
Committee'') to investigate the Department's allegations. A
hearing was held before the Special Committee on October 29 and
30, 2007 (the ``Fifth Circuit Hearing''), at which Judge
Porteous, representing himself, testified,\3\ cross-examined
witnesses, and called witnesses on his own behalf.\4\
Thereafter, the Special Committee issued a Report to the
Judicial Council of the Fifth Circuit, dated November 20, 2007.
That Report concluded that Judge Porteous committed misconduct
which ``might constitute one or more grounds for
impeachment.''\5\
---------------------------------------------------------------------------
\3\An order of immunity had been obtained and provided to Judge
Porteous in connection with his testimony before the Fifth Circuit
Special Committee.
\4\That hearing did not address Judge Porteous's improper
relationships with bail bondsmen, nor did it examine his conduct during
the confirmation process to become a Federal judge.
\5\Report by the Special Investigatory Committee to the Judicial
Council of the United States Court of Appeals for the Fifth Circuit, In
the Matter of Judge G. Thomas Porteous, Jr. United States District
Judge, Eastern District of Louisiana, Dkt. No. 07-05-351-0085 (Nov. 20,
2007) (Ex. 5).
---------------------------------------------------------------------------
On December 20, 2007, by a majority vote, the Judicial
Council of the Fifth Circuit accepted and approved the Special
Committee's Report and likewise concluded that Judge Porteous
``had engaged in conduct which might constitute one or more
grounds for impeachment under Article I of the
Constitution.''\6\ The Fifth Circuit Judicial Council
thereafter certified these findings and the supporting records
to the Judicial Conference of the United States.\7\
---------------------------------------------------------------------------
\6\Memorandum Order and Certification, In re: Complaint of Judicial
Misconduct Against United States District Judge G. Thomas Porteous, Jr.
Under the Judicial Conduct and Disability Act of 1980, Judicial Council
of the Fifth Circuit, Dkt. No. 07-05-351-0085 (Dec. 20, 2007) at 4 (Ex.
6(a)). A dissenting opinion authored by Circuit Judge James L. Dennis
examined each of Judge Porteous's acts individually and concluded that,
under that analysis, the evidence did not demonstrate a possible ground
for impeachment and removal. Id. (J. Dennis dissenting) (Ex. 6(b)).
Judge Dennis would have recommended suspending and reprimanding Judge
Porteous.
\7\Memorandum Order and Certification, In re: Complaint of Judicial
Misconduct Against United States District Judge G. Thomas Porteous, Jr.
Under the Judicial Conduct and Disability Act of 1980, Judicial Council
of the Fifth Circuit, Dkt. No. 07-05-351-0085 (Dec. 20, 2007) at 5 (Ex.
6(a)).
---------------------------------------------------------------------------
On June 17, 2008, the Judicial Conference of the United
States determined unanimously, upon recommendation of its
Committee on Judicial Conduct and Disability, to transmit to
the Speaker of the House a Certificate ``that consideration of
impeachment of United States District Judge G. Thomas Porteous
(E.D. La.) may be warranted.''\8\
---------------------------------------------------------------------------
\8\Certificate of the Judicial Conference of the United States, to
the Speaker, United States House of Representatives [Re: Determination
that Consideration of Impeachment of Judge G. Thomas Porteous may be
Warranted], June 17, 2008 (Ex. 7). The Certificate was thereafter hand
delivered to the Honorable Nancy Pelosi, Speaker of the House, on June
18, 2008.
---------------------------------------------------------------------------
On September 10, 2008, the Judicial Council of the Fifth
Circuit issued an ``Order and Public Reprimand'' taking the
maximum disciplinary action allowed by law against Judge
Porteous, including ordering that no new cases be assigned to
him and suspending his authority to employ staff for 2 years or
``until Congress takes final action on the impeachment
proceedings, whichever occurs earlier.''\9\
---------------------------------------------------------------------------
\9\Order and Public Reprimand, In re: Complaint of Judicial
Misconduct Against United States District Judge G. Thomas Porteous, Jr.
Under the Judicial Conduct and Disability Act of 1980, Judicial Council
of the Fifth Circuit, Dkt. No. 07-05-351-0085 (Sept. 10, 2008) at 4
(Ex. 8).
---------------------------------------------------------------------------
On September 17, 2008, the House of Representatives of the
110th Congress passed H. Res. 1448, which provided, in
pertinent part: ``Resolved, That the Committee on the Judiciary
shall inquire whether the House should impeach G. Thomas
Porteous, a judge of the United States District Court for the
Eastern District of Louisiana.''\10\ On January 6, 2009,
Chairman John Conyers, Jr. of the Committee on the Judiciary
introduced H. Res. 15, which continued the authority of H. Res.
1448 of the 110th Congress for the 111th Congress.\11\ On
January 13, 2009, H. Res. 15 passed the full House by voice
vote.
---------------------------------------------------------------------------
\10\H. Res. 1448 (2008).
\11\H. Res. 15 (2009).
---------------------------------------------------------------------------
V. COMMITTEE AND TASK FORCE ACTIONS
On January 22, 2009, the impeachment inquiry was referred
by the Committee on the Judiciary to a Task Force on Judicial
Impeachment (the ``Task Force''), comprised of 12 Committee
Members, to conduct the investigation.\12\ On July 29, 2009,
the Committee on the Judiciary voted to permit the House
General Counsel to seek immunity orders to compel the testimony
of 8 witnesses.
---------------------------------------------------------------------------
\12\See Reestablishment of the Task Force on Judicial Impeachment:
Before the H. Comm. on the Judiciary, 111th Con. (2009) (statement of
John Conyers, Jr., Chairman, Committee on the Judiciary), http://
judiciary.house.gov/hearings/transcripts/transcript090122.pdf at 30-34.
The Task Force consisted of Chairman Adam B. Schiff (CA), Ranking
Member Bob Goodlatte (VA), Sheila Jackson Lee (TX), Steve Cohen (TN),
Henry C. ``Hank'' Johnson (GA), Pedro Pierluisi (PR), Charles A.
Gonzalez (TX), F. James Sensenbrenner (WI), Daniel E. Lungren (CA), J.
Randy Forbes (VA), and Louis Gohmert (TX).
---------------------------------------------------------------------------
A. In General
Task Force Staff reviewed materials provided from the Fifth
Circuit (which included DOJ materials that had been provided to
the attorneys handling the Special Investigatory inquiry). Task
Force Staff also obtained additional documents from DOJ and
from other entities, and interviewed over 70 individuals and
took over 25 depositions. The evidentiary materials that are
pertinent to this Report were made part of the record at the
Task Force meeting of January 21, 2010.
B. Litigation by Judge Porteous
in Response to the Task Force Inquiry
Judge Porteous has litigated in three different courts in
an attempt to preclude, or delay, the Committee from obtaining
critically-needed information in this impeachment inquiry.
After review of the DOJ Complaint Letter, and the referral
from the U.S. Judicial Conference, the Committee moved to
obtain a court order authorizing DOJ to disclose grand jury
materials. The Committee originally moved on July 8, 2009 for
an order authorizing the disclosure of grand jury materials
related to the DOJ investigations of Judge Porteous, Rowan
Company, and Diamond Offshore, and a Department of Interior
employee, Donald C. Howard.\13\
---------------------------------------------------------------------------
\13\Memorandum in Support of the U.S. House of Representatives
Committee on the Judiciary for an Order Directing the Department of
Justice to Disclose Certain Grand Jury Materials, In re: Grand Jury
Investigation of United States District Judge G. Thomas Porteous, Jr.,
Misc. No. 09-4346 (E.D. La. July 8, 2009) (Ex. 401). Howard had been
prosecuted for not disclosing that he accepted hunting trips from Rowan
Companies on his financial disclosure reports, and, in fact, had been
on some of the same Rowan hunting trips as Judge Porteous.
---------------------------------------------------------------------------
After the Committee filed its Motion, Judge Porteous's counsel wrote
to the judge assigned to the case and asserted that it would not be
proper for any judge currently sitting in the judicial districts
comprising the Fifth Circuit to hear and decide the Committee's motion.
Letter from Richard W. Westling, Counsel to Judge Porteous, to the
Honorable Neal B. Biggers, Jr., Senior United States District Judge
(July 13, 2009) (Ex. 400). As a result, the Fifth Circuit designated
the Honorable Callie V. S. Granade, the Chief Judge of the Southern
District of Alabama, to hear and decide the Committee's motion.
On July 28, 2009, Judge Porteous filed an opposition to the
Committee's Motion.\14\ While never challenging the fact that
the information sought was relevant and necessary for the
impeachment inquiry, the Judge's opposition was based solely on
a concern for secrecy of grand jury matters. The court
dismissed this objection and issued an order dated August 5,
2009, granting the Committee's Motion.\15\ Thereafter, Judge
Porteous moved to stay the Order pending his appeal to the U.S.
Court of Appeals for the Fifth Circuit;\16\ the Committee
opposed Judge Porteous's stay motion\17\ and the District Court
denied the stay as without merit.\18\ Judge Porteous took an
appeal of the August 5 grand jury disclosure order\19\ and also
moved in the U.S. Court of Appeals for the Fifth Circuit to
stay disclosure pending the duration of the entire appeal.\20\
The Committee opposed this motion,\21\ and the Court of Appeals
denied the stay.\22\ Throughout these pleadings, Judge Porteous
never argued that the grand jury materials sought were not
relevant to the Committee's impeachment inquiry.
---------------------------------------------------------------------------
\14\Judge G. Thomas Porteous, Jr.'s Memorandum in Opposition to the
Motion of the U.S. House of Representatives, Committee on the
Judiciary's Motion for an Order Directing the Department of Justice to
Disclose Certain Grand Jury Materials, In re: Grand Jury Investigation
of United States District Judge G. Thomas Porteous, Jr., Misc. No. 09-
4346 (E.D. La. July 28, 2009) (Ex. 402).
\15\Order, In re: Grand Jury Investigation of United States
District Judge G. Thomas Porteous, Jr., Misc. No. 09-4346 (E.D. La.
Aug. 5, 2009) (granting motion to disclose grand jury materials) (Ex.
403).
\16\Judge Porteous's Motion for a Stay of the Court's August 5,
2009 Grand Jury Disclosure Order Pending Appeal of the Order to the
United States Court of Appeals for the Fifth Circuit, In re: Grand Jury
Investigation of United States District Judge G. Thomas Porteous, Jr.,
Misc. No. 09-4346 (E.D. La. Aug. 10, 2009) (Ex. 404).
\17\U.S. House Committee on the Judiciary's Opposition to Motion
for Stay of the Court's Grand Jury Disclosure Order Pending Appeal, In
re: Grand Jury Investigation of United States District Judge G. Thomas
Porteous, Jr., Misc. No. 09-4346 (E.D. La. Aug. 13, 2009) (Ex. 406).
\18\Order, In re: Grand Jury Investigation of United States
District Judge G. Thomas Porteous, Jr., Misc. No. 09-4346 (E.D. La.
Aug. 18, 2009) (denying motion to stay disclosure pending appeal) (Ex.
407).
\19\Notice of Appeal of the Court's August 5, 2009 Grand Jury
Disclosure Order, In re: Grand Jury Investigation of United States
District Judge G. Thomas Porteous, Jr., Misc. No. 09-4346 (E.D. La.
Aug. 10, 2009) (Ex. 405).
\20\Appellant's Motion for a Stay of the District Court's Grand
Jury Disclosure Order Pending Appeal, In Re: Grand Jury Investigation
of United States District Judge G. Thomas Porteous, Jr., No. 09-30737
(5th Cir. Aug. 20, 2009) (Ex. 408).
\21\Opposition to Appellant's Motion for Stay, In Re: Grand Jury
Investigation of United States District Judge G. Thomas Porteous, Jr.,
No. 09-30737 (5th Cir. Aug. 26, 2009) (Ex. 409).
\22\Order, In Re: Grand Jury Proceedings, No. 09-30737 (5th Cir.
Sept. 14, 2009) (denying appellant's motion for a stay pending appeal)
(Ex. 410).
---------------------------------------------------------------------------
On September 23, 2009, the Committee moved for summary
affirmance of the district court's August 5, 2009 grand jury
disclosure order.\23\ Judge Porteous opposed this motion\24\
and the Committee replied.\25\ Judge Porteous moved to
disqualify the panel of Fifth Circuit judges that ruled on the
motion for a stay pending appeal, to vacate the panel's order
denying the stay, and to designate a panel of judges from
another Circuit to hear all further proceedings in the
appeal.\26\ The Committee opposed this motion.\27\ On October
26, 2009, Judge Porteous filed the merits brief in his
appeal.\28\
---------------------------------------------------------------------------
\23\Appellee's Motion for Summary Affirmance, In Re: Grand Jury
[Proceedings], No. 09-30737 (5th Cir. Sept. 23, 2009) (Ex. 411).
\24\Appellant's Memorandum in Opposition to Appellee's Motion for
Summary Affirmance, In Re: Grand Jury Proceedings, No. 09-30737 (5th
Cir. Oct. 5, 2009) (Ex. 412).
\25\Reply of U.S. House Judiciary Committee to Appellant's
Memorandum in Opposition to Appellee's Motion for Summary Affirmance,
In Re: Grand Jury Proceedings, No. 09-30737 (5th Cir. Oct. 9, 2009)
(Ex. 413).
\26\Appellant's Motion to Disqualify the Panel of Judges that Ruled
on the Motion for a Stay Pending Appeal, to Vacate the Panel's Order
Denying a Stay, and to Designate a Panel of Judges From Another Circuit
to Hear all Further Proceedings in this Appeal, In Re: Grand Jury
Proceedings, No. 09-30737 (5th Cir. Sept. 29, 2009) (Ex. 414).
\27\Opposition of the U.S. House Judiciary Committee to Appellant's
Motion to Disqualify the Panel . . . To Vacate the Panel's Order . . .
and to Designate a Panel of Judges From Another Circuit to Hear . . .
This Appeal, In Re: Grand Jury Proceedings, No. 09-30737 (5th Cir. Oct.
6, 2009) (Ex. 415).
\28\Original Brief on Behalf of Appellant G. Thomas Porteous, Jr.,
United States District Judge, In Re: Grand Jury Proceedings, No. 09-
30737 (5th Cir. Oct. 26, 2009) (Ex. 416).
---------------------------------------------------------------------------
On November 12, 2009, the U.S. Court of Appeals for the
Fifth Circuit issued an order which granted the Committee's
motion for summary affirmance, and denied all of Judge
Porteous's motions.\29\ The Task Force finally obtained access
to the grand jury materials in mid-November 2009.
---------------------------------------------------------------------------
\29\Order, In Re: Grand Jury Proceedings, No. 09-30737 (5th Cir.
Nov. 12, 2009) (granting appellee's motion for summary affirmance and
denying appellant's motions to disqualify all Fifth Circuit Court of
Appeals Judges from the case, vacate the order denying the motion for
staying pending appeal, to designate a panel from another Circuit, and
stay pending appeal) (Ex. 417).
---------------------------------------------------------------------------
The Judge's legal maneuverings had delayed access by the
staff to important and relevant information for approximately 5
months.
By way of a motion filed October 8, 2009, the Committee
sought a second Order authorizing disclosure of grand jury and
Title III wiretap materials that related to Judge Porteous.
These materials were obtained during the Department's
``Wrinkled Robe'' investigation into corruption in connection
with the relationship of certain bail bondsmen to State judges
of the 24th Judicial District Court of Louisiana, where Judge
Porteous had presided prior to becoming a Federal judge.\30\
Again, Judge Porteous filed an opposition to this motion,\31\
and the Committee replied.\32\ The Department of Justice filed
a memorandum in support of the Committee.\33\ On October 23,
2009, the court granted the Committee's motion and authorized
disclosure of the grand jury and Title III materials.\34\
---------------------------------------------------------------------------
\30\U.S. House Judiciary Committee's Motion to Obtain Grand Jury
Materials and Specified Court-Ordered Wiretaps, In re: Grand Jury
Investigation of United States District Judge G. Thomas Porteous, Jr.,
Misc. No. 09-4346 (E.D. La. Oct. 8, 2009) (Ex. 418).
\31\Judge G. Thomas Porteous, Jr.'s Memorandum in Opposition to the
Motion of the U.S. House of Representatives, Committee on the
Judiciary's Motion to Obtain Grand Jury Materials and Specified Court-
Ordered Wiretaps, In re: Grand Jury Investigation of United States
District Judge G. Thomas Porteous, Jr., Misc. No. 09-4346 (E.D. La.
Oct. 16, 2009) (Ex. 419).
\32\Reply of U.S. House Judiciary Committee to Judge G. Thomas
Porteous's Opposition to the Motion to Obtain Grand Jury Materials and
Specified Court-Ordered Wiretaps, In re: Grand Jury Investigation of
United States District Judge G. Thomas Porteous, Jr., Misc. No. 09-4346
(E.D. La. Oct. 23, 2009) (Ex. 420).
\33\Memorandum in Response to U.S. House Judiciary Committee's
Motion to Obtain Grand Jury Materials and Specified Court-Ordered
Wiretaps, In re: Grand Jury Investigation of United States District
Judge G. Thomas Porteous, Jr., Misc. No. 09-4346 (E.D. La. Oct. 16,
2009) (Ex. 421).
\34\Order, In re: Grand Jury Investigation of United States
District Judge G. Thomas Porteous, Jr., Misc. No. 09-4346 (E.D. La.
Oct. 23, 2009) (granting Committee's motion for order authorizing
disclosure of grand jury and Title III materials) (Ex. 422).
---------------------------------------------------------------------------
Once again, Judge Porteous moved in the district court to
stay disclosure.\35\ The Committee opposed his stay motion.\36\
The district court denied the stay motion as without merit.\37\
Judge Porteous did not move to stay disclosure in the Court of
Appeals, but he did file and pursue an appeal of the disclosure
order. The Committee obtained access to the Wrinkled Robe grand
jury and Title III materials in mid-November 2009 pursuant to
the district court's disclosure order.
---------------------------------------------------------------------------
\35\Judge Porteous's Motion for a Stay of the Court's October 23,
2009 Grand Jury and Specified Wiretaps Disclosure Order Pending Appeal
of the Order to the United States Court of Appeals for the Fifth
Circuit, In re: Grand Jury Investigation of United States District
Judge G. Thomas Porteous, Jr., Misc. No. 09-4346 (E.D. La. Nov. 4,
2009) (Ex. 423).
\36\Opposition of the Committee on the Judiciary of the U.S. House
of Representatives to Judge Porteous's Motion for Stay of the Court's
October 23, 2009 Order Pending Appeal, In re: Grand Jury Investigation
of United States District Judge G. Thomas Porteous, Jr., Misc. No. 09-
4346 (E.D. La. Nov. 10, 2009) (Ex. 424).
\37\Order, In re: Grand Jury Investigation of United States
District Judge G. Thomas Porteous, Jr., Misc. No. 09-4346 (E.D. La.
Nov. 12, 2009) (denying motion for stay pending appeal) (Ex. 425).
---------------------------------------------------------------------------
On December 30, 2009, the Committee moved for summary
affirmance of Judge Porteous's appeal from the Wrinkled Robe
disclosure order.\38\ On January 29, 2010, the Fifth Circuit
granted the Committee's motion and affirmed the district
court's disclosure order.\39\
---------------------------------------------------------------------------
\38\Appellee's Motion for Summary Affirmance, In Re: Grand Jury
Proceedings, No. 09-31062 (5th Cir. Dec. 30, 2009) (Ex. 426).
\39\Order, In Re: Grand Jury Proceedings, No. 09-31062 (5th Cir.
Jan. 29, 2010) (Ex. 436).
---------------------------------------------------------------------------
The district court and the Fifth Circuit granted the
Committee's unopposed motions to unseal the litigation\40\ so
that all of the pleadings would be available to the public.
---------------------------------------------------------------------------
\40\Order, In re: Grand Jury Investigation of United States
District Judge G. Thomas Porteous, Jr., Misc. No. 09-4346 (E.D. La.
Dec. 14, 2009) (granting unopposed motion to unseal) (Ex. 427); Order,
In Re: Grand Jury Proceeding, No. 09-30737 (5th Cir. Dec. 30, 2009)
(same); Order, In Re: Grand Jury Proceedings, No. 09-31062 (5th Cir.
Dec. 30, 2009) (same).
---------------------------------------------------------------------------
In addition to the grand jury litigation, on November 12,
2009, a few days prior to the first evidentiary hearing of the
Task Force, Judge Porteous filed a lawsuit in the United States
District Court for the District of Columbia seeking a permanent
injunction preventing the Committee from using or reading his
sworn immunized testimony that had been provided to the
Committee by the Judicial Conference. On an emergency basis,
Judge Porteous sought a temporary restraining order to enjoin
three aides to the Impeachment Task Force from using testimony
he had provided under a grant of immunity to the Fifth Circuit
Special Committee more than 2 years earlier.\41\ On an
expedited schedule, the Committee moved to dismiss this
motion,\42\ and Judge Porteous replied.\43\ United States
District Judge Richard J. Leon of the United States District
Court for the District of Columbia denied Judge Porteous's
motion for a temporary restraining order after oral argument on
November 16, 2009.\44\ Per the Court's request, the Committee
filed a supplemental memorandum in support of its motion to
dismiss.\45\ Judge Porteous opposed this motion\46\ and the
Committee replied.\47\
---------------------------------------------------------------------------
\41\Complaint for Declaratory Judgment and Injunctive Relief,
Porteous v. Baron, et al, Case No. 1:09-cv-2131 (D.D.C. Nov. 13, 2009)
(Ex. 428); Plaintiff G. Thomas Porteous, Jr.'s Motion for a Temporary
Restraining Order and Preliminary Injunction, Porteous v. Baron, et al,
Case No. 1:09-cv-2131 (D.D.C. Nov. 13, 2009) (Ex. 429).
\42\Defendants' Motion to Dismiss, Porteous v. Baron, et al, Case
No. 1:09-cv-2131 (D.D.C. Nov. 13, 2009) (Ex. 430).
\43\Judge G. Thomas Porteous, Jr.'s Reply Memorandum to Defendants'
Opposition to his Motion for a Temporary Restraining Order and a
Preliminary Injunction, Porteous v. Baron, et al, Case No. 1:09-cv-2131
(D.D.C. Nov. 14, 2009) (Ex. 431).
\44\Bench Order, Porteous v. Baron, et al, Case No. 1:09-cv-2131
(D.D.C. Nov. 16, 2009) (denying motion for a temporary restraining
order) (PACER Docket Report) (Ex. 432). ``PACER'' is an acronym for
``Public Access to Court Electronic Records.'' It is an electronic
database that allows users to obtain case and docket information from
the Federal courts. A document referred to in this Report as a ``PACER
Docket Report'' is a standard computerized printout that sets forth the
various events that occur in the course of a given case. In this case,
the PACER Docket Report reflects the denial of the Motion for the
Temporary Restraining Order on November 16, 2009.
\45\Defendants' Supplemental Memorandum in Support of Motion to
Dismiss, Porteous v. Baron, et al, Case No. 1:09-cv-2131 (D.D.C. Dec.
18, 2009) (Ex. 433).
\46\Judge G. Thomas Porteous, Jr.'s Memorandum in Opposition to
Defendants' Motion to Dismiss, Porteous v. Baron, et al, Case No. 1:09-
cv-2131 (D.D.C. Jan. 8, 2010) (Ex. 434).
\47\Defendants' Reply Brief in Support of Their Motion to Dismiss,
Porteous v. Baron, et al, Case No. 1:09-cv-2131 (D.D.C. Jan. 15, 2010)
(Ex. 434). As of the date of the preparation of this Report, the motion
to dismiss is under advisement.
---------------------------------------------------------------------------
C. Task Force Hearings
The Task Force held four hearings regarding the conduct of
Judge Porteous. On November 17 and 18, 2009, Attorneys Robert
Creely, Jacob Amato, and Joseph Mole testified.\48\
---------------------------------------------------------------------------
\48\See To Consider Possible Impeachment of United States District
Judge G. Thomas Porteous, Jr. (Part I), Hearing Before the Task Force
on Judicial Impeachment of the Committee on the Judiciary, House of
Representatives, 111th Cong. (Nov. 17-18, 2009).
---------------------------------------------------------------------------
On December 8, 2009, Federal Bureau of Investigation
Special Agent DeWayne Horner, Attorney Claude Lightfoot, and
Chief United States Bankruptcy Judge for the District of
Maryland Duncan Keir testified.\49\
---------------------------------------------------------------------------
\49\See To Consider Possible Impeachment of United States District
Judge G. Thomas Porteous, Jr. (Part II), Hearing Before the Task Force
on Judicial Impeachment of the Committee on the Judiciary, House of
Representatives, 111th Cong. (Dec. 8, 2009).
---------------------------------------------------------------------------
On December 10, 2009, Bail Bondsman Louis M. Marcotte, III,
and his sister Lori Marcotte testified.\50\
---------------------------------------------------------------------------
\50\See To Consider Possible Impeachment of United States District
Judge G. Thomas Porteous, Jr. (Part III), Hearing Before the Task Force
on Judicial Impeachment of the Committee on the Judiciary, House of
Representatives, 111th Cong. (Dec.10, 2009).
---------------------------------------------------------------------------
At each of the above hearings, Special Impeachment Counsel
Alan I. Baron presented an overview of the evidence that
related to the topics of the hearings.
On December 15, 2009, Professors Akhil Reed Amar (Yale Law
School), Charles Geyh (Indiana University Maurer School of
Law), and Michael Gerhardt (University of North Carolina School
of Law) testified.\51\
---------------------------------------------------------------------------
\51\See To Consider Possible Impeachment of United States District
Judge G. Thomas Porteous, Jr. (Part IV), Hearing Before the Task Force
on Judicial Impeachment of the Committee on the Judiciary, House of
Representatives, 111th Cong. (Dec. 15, 2009).
---------------------------------------------------------------------------
Judge Porteous's attorney, Richard Westling, Esq., was
permitted to give an opening statement at the initial hearing
and was offered the opportunity to examine the witnesses at
each of the four hearings. He did in fact examine witnesses at
all the hearings except the December 10, 2009 hearing, where,
despite having been offered the opportunity to participate,
neither Mr. Westling nor any other attorney representing Judge
Porteous was present. Mr. Westling was given the opportunity to
identify witnesses whose testimony he sought for the Committee
to hear. Mr. Westling did not identify any such individuals.
Judge Porteous was also provided the opportunity to testify. He
declined to do so.
On January 21, 2010, the Task Force held a meeting to
consider proposed articles of impeachment. In connection with
that meeting, Task Force exhibits cited in this Report were
made part of the record. At that meeting, Task Force Members
agreed by an 8-0 vote to recommend four specified Articles of
Impeachment to the Full Committee.
On that same day, Chairman Conyers introduced H. Res. 1031,
setting forth the four recommended Articles of Impeachment
against Judge Porteous.
On January 27, 2010, the Committee on the Judiciary met and
unanimously approved by record votes each of the four articles,
and, upon doing so, voted unanimously to report H. Res 1031 to
the full House.
VI. A BRIEF DISCUSSION OF IMPEACHMENT
A. Pertinent Constitutional Provisions
The following are the pertinent provisions in the United
States Constitution that relate to impeachment:
Article I, Section 2, Clause 5:
The House of Representatives . . . shall have the
sole Power of Impeachment.
Article I, Section 3, Clauses 6 and 7:
The Senate shall have the sole Power to try all
Impeachments. When sitting for that Purpose, they shall
be on Oath or Affirmation. When the President of the
United States is tried, the Chief Justice shall
preside: And no person shall be convicted without the
Concurrence of two-thirds of the Members present.
Judgment in Cases of Impeachment shall not extend
further than to removal from Office, and
disqualification to hold and enjoy any Office of honor,
Trust or Profit under the United States: but the Party
convicted shall nevertheless be liable and subject to
Indictment, Trial, Judgment and Punishment, according
to Law.
Article II, Section 2, Clause 1:
The President . . . shall have Power to grant
Reprieves and Pardons for Offences against the United
States, except in Cases of Impeachment.
Article II, Section 4:
The President, Vice President and all civil Officers
of the United States, shall be removed from Office on
Impeachment for, and Conviction of, Treason, Bribery,
or other high Crimes and Misdemeanors.
In this regard, it has long been recognized that Federal
judges are ``civil Officers'' within the meaning of Article II,
Section 4.\52\ Finally, as to the life tenure of Federal
judges, the Constitution provides:
---------------------------------------------------------------------------
\52\A commentator wrote in 1825:
All executive and judicial officers, from the president
downwards, from the judges of the supreme court to those of
the most inferior tribunals, are included in this
---------------------------------------------------------------------------
description.
W. Rawle, A View of the Constitution of the United States of America,
Philip H. Nicklin ed. (1829), 213 (The Law Exchange reprint (2003)).
Another prominent commentator, Joseph Story, wrote:
All officers of the United States . . . who hold their
appointments under the national government, whether their
duties are executive or judicial, in the highest or in the
lowest departments of the government, with the exception of
officers in the army and navy, are properly civil officers
within the meaning of the constitution, and liable to
impeachment.
2 Joseph Story, Commentaries on the Constitution of the United States
Sec. 790 at 258 (1833) (citing Rawle) (quoted in To Consider Possible
Impeachment of United States District Judge Samuel B. Kent of the
Southern District of Texas: Hearing Before the Task Force on Judicial
Impeachment of the H. Comm. on the Judiciary, 111th Cong. Serial No.
111-11 (June 3, 2009) (statement of Prof. Arthur Hellman)).
Article III, Section 1:
The Judges, both of the supreme and inferior Courts,
shall hold their Offices during good Behaviour. . . .
B. The Meaning of ``High Crimes and Misdemeanors''
The committee report accompanying the 1989 Resolution to
Impeach United States District Court Judge Walter L. Nixon
summarized the British precedents for impeachment, the events
at the Constitutional convention leading to the adoption of the
``high crimes and misdemeanors'' formulation for impeachable
conduct, and the interpretation of that term in the 12 judicial
impeachments that had occurred prior to 1989. In its summary of
the historical meaning of the term, the report noted:
The House and Senate have both interpreted the phrase
broadly, finding that impeachable offenses need not be
limited to criminal conduct. Congress has repeatedly
defined ``other high Crimes and misdemeanors'' to be
serious violations of the public trust, not necessarily
indictable offenses under criminal laws.\53\
---------------------------------------------------------------------------
\53\H.R. Rep. No. 101-36, Impeachment of Walter L. Nixon, Jr.,
Report of the Committee on the Judiciary to Accompany H. Res. 87, 101st
Cong., 1st Sess. (1989) [hereinafter ``Walter Nixon Impeachment
Report"] at 5 (1989).
In applying these concepts to the conduct of a judge, the
Walter Nixon Impeachment Report further stressed that the term
``misdemeanor'' as used in the Constitution was not intended to
denote a minor criminal offense, but rather focused on the
behavior of the judge, that is, whether the judge
---------------------------------------------------------------------------
``misdemean[ed]'' and thus should be removed:
Indeed, when the phrase ``high crimes and
misdemeanors'' first appeared during the impeachment of
the Earl of Suffolk in 1386, the term ``misdemeanor''
did not denote a violation of criminal law. In the
context of impeachment, the word focuses on the
behavior of a public official, i.e., his demeanor.
Gouverneur Morris, a member of the Committee on Style
and Revision of the Constitutional Convention and one
of the founding fathers responsible for the final
revisions to the Constitution, explained the use of the
term ``Misdemeanor'': ``[T]he judges shall hold their
offices so long as they demean themselves well, but if
they shall misdemean, if they shall, on impeachment, be
convicted of misdemeanor, they shall be removed.''\54\
---------------------------------------------------------------------------
\54\Walter Nixon Impeachment Report at 5 (footnote omitted).
---------------------------------------------------------------------------
The Walter Nixon Impeachment Report concluded:
Thus, from an historical perspective the question of
what conduct by a Federal judge constitutes an
impeachable offense has evolved to the position where
the focus is now on public confidence in the integrity
and impartiality of the judiciary. When a judge's
conduct calls into questions his or her integrity or
impartiality, Congress must consider whether
impeachment and removal of the judge from office is
necessary to protect the integrity of the judicial
branch and uphold the public trust.\55\
---------------------------------------------------------------------------
\55\Id. at 12.
The report that accompanied the Alcee Hastings impeachment
resolution stated that the phrase ``high crimes and
misdemeanors'' ``refers to misconduct that damages the state
and the operations of governmental institutions, and is not
limited to criminal misconduct.''\56\ That Report stressed that
impeachment is ``non-criminal,'' designed not to impose
criminal penalties, but instead simply to remove the offender
from office,\57\ and that it is ``the ultimate means of
preserving our constitutional form of government from the
depredations of those in high office who abuse or violate the
public trust.''\58\ The fact that the individual who is
impeached and removed from office ``shall nevertheless be
liable and subject to Indictment, Trial, Judgment and
Punishment, according to Law,'' makes it further clear that
impeachment is a remedial provision, not a punitive one.\59\
---------------------------------------------------------------------------
\56\H.R. Rep. No. 100-810, Impeachment of Alcee L. Hastings, Report
of the Committee on the Judiciary to Accompany H. Res. 499, 100th
Cong., 2d Sess. (1988) [hereinafter ``Hastings Impeachment Report''],
at 6.
\57\Hastings Impeachment Report at 7.
\58\Id. at 7. The last four judicial impeachments--those of Judge
Samuel B. Kent (2009), Judge Walter L. Nixon (1989), Judge Alcee
Hastings (1988), and Judge Harry Claiborne (1986)--occurred subsequent
to Federal criminal proceedings, and the impeachment articles were to a
great extent patterned after the Federal criminal charges. However, the
principles that underlie the propriety of impeachment do not require
that the conduct at issue be criminal in nature, or that there have
been a criminal prosecution.
\59\U.S. Const., art. I, Sec. 3, cl. 7.
---------------------------------------------------------------------------
VII. ARTICLE BY ARTICLE ANALYSIS
A. In General
In connection with the impeachment of Federal Judge George
W. English in 1926, the House Committee on the Judiciary noted:
``Each case of impeachment must necessarily stand upon its own
facts. It can not, therefore, become a precedent or be on all
fours with every other case.''\60\ That observation is
particularly true in regard to the case of Judge Porteous, who
has committed misconduct in several spheres of activity over
many years. As one scholar noted in his testimony before the
Task Force, any lack of factual precedents directly on point
``has to do with more the nature of Judge Porteous's misconduct
than with anything else. The fact is that we are discovering or
finding in this case a pattern of misbehavior that extends over
such a long period of time that is virtually unique in the
annals of impeachment.''\61\ Nonetheless, a review of prior
judicial impeachments reveals that the four Articles against
Judge Porteous are consistent with the Constitution and
impeachment precedent.
---------------------------------------------------------------------------
\60\``Impeachment of Judge George W. English,'' excerpts from Cong.
Rec. (House), Mar. 25, 1926 (6283-87), reprinted in ``Impeachment,
Selected Materials, House Comm. on the Judiciary,'' Comm. Print (1973)
at 163 (hereinafter ``English Impeachment Report'').
\61\Prof. Gerhardt TF Hrg. IV at 25.
---------------------------------------------------------------------------
B. Discussion of the Articles
1. Article I
Article I sets forth Judge Porteous's conduct in the course
of presiding over the case Lifemark Hospitals of La., Inc.
[``Lifemark''] v. Liljeberg Enterprises, Inc. [``Liljeberg'' or
``the Liljebergs''],\62\ including his failure to recuse
himself despite his close personal and financial relationships
with attorneys for the Liljebergs (including, in particular,
his prior financial relationship with Amato and Amato's partner
Creely, while Judge Porteous was a State judge); making false
and deceptive statements at the recusal hearing to conceal his
relationship and otherwise failing to disclose his prior
financial relationship; and continuing to solicit and accept
things of value from the attorneys in that case, including
cash, while he had the case under advisement.
---------------------------------------------------------------------------
\62\Civ. Action No. 93-1794 (E.D. La.). See PACER Docket Report
(Ex. 50).
---------------------------------------------------------------------------
The conduct alleged in Article I--financial entanglements
with persons having business before the court--is well
recognized as constituting the ``gravest sort'' of judicial
misconduct.\63\ The Committee notes that the conduct involving
the solicitation and receipt of things of value violates
Federal law as well as several of the Canons of Judicial Ethics
that are designed to ensure that parties receive a fair trial
by an impartial judge--a judge that is neither soliciting nor
accepting things of value from attorneys who are appearing in
front of him.\64\
---------------------------------------------------------------------------
\63\Prof. Geyh TF Hrg. IV at 12 (written statement at 6).
\64\As Professor Geyh testified:
[J]udge Porteous's misconduct here was of the gravest sort.
The current Code of Conduct for United States judges
provides that ``A judge should comply with the restrictions
on acceptance of gifts set forth in the Judicial Conference
Gift Regulations. [citation omitted]'' The judge who
solicits or receives money from a lawyer who has an
important case pending before the court, creates the taint
of corruption that the Judicial Conference's gift
regulations are designed to prevent; it is thus
unsurprising that ethics rules universally condemn the
---------------------------------------------------------------------------
practice.
Prof. Geyh TF Hrg. IV at 12 (written statement at 6). The principles of
impeachment do not require that the conduct at issue constitute a
specific crime or violation of a civil or regulatory rule of law.
Nonetheless, the fact that the conduct alleged to warrant impeachment
violates widely accepted ethical standards or particular civil or
criminal laws is a relevant consideration that informs, and in this
case supports, the decision that impeachment and removal is
appropriate. In connection with the impeachment of Judge Harry
Claiborne, the accompanying Report referenced the Code of Judicial
Conduct for United States Judges as ``[o]ne guide to what is considered
`good behavior' befitting a member of the judiciary.'' The Report noted
that Canon 1 (providing that judges should ``uphold the integrity'' of
the judiciary) and Canon 2 (providing that judges should ``avoid
impropriety and the appearance of impropriety'') ``reinforce the
Committee's determination that Judge Claiborne has brought disrepute
upon the profession and severely undermined public confidence in the
institution.'' H.R. Rep. No. 99-688, ``Impeachment of Judge Harry E.
Claiborne, Report of the Committee on the Judiciary to Accompany H.
Res. 461,'' 99th Cong., 2d Sess. 23 (1986) [hereinafter ``Claiborne
Impeachment Report''].
Further, Article I against Judge Porteous alleges
misconduct similar to that alleged in articles of impeachment
against other judges. For example, in 1912, the House voted
articles of impeachment against Circuit Judge Robert W.
Archbald alleging numerous incidents of improper financial
involvement with attorneys and parties. Articles 1 though 6
against Judge Archbald described complicated financial schemes
whereby, while he was a judge of the Commerce Court, Judge
Archbald enriched himself through financial dealings with
companies and attorneys with cases before the Court. Articles 7
through 9 described complicated relationships through which
Judge Archbald obtained money from counsels for parties with
cases in front of him when he was a district court judge.
Article10 charged that as a district court judge, Judge
Archbald received money from an individual who was an officer
and director of major railroad corporations ``which in the due
course of business was liable to be interested in litigation
pending in the said court over which [Archbald] presided as a
judge.'' That Article further charged that Judge Archbald's
acceptance of the money was thus ``improper and had a tendency
to and did bring his said office of district judge into
disrepute.'' Article 11 charged that Judge Archbald did
``wrongfully accept and receive'' money that was ``contributed
to [him] by various attorneys who were practitioners in the
said court presided over by [Judge Archbald].''\65\
---------------------------------------------------------------------------
\65\H. Res. 622, 62d Cong., 2d Sess (1912) (Articles of Impeachment
against Judge Robert W. Archbald), 48 Cong Rec. (House) July 8, 1912
(8705-08), reprinted in Impeachment, Selected Materials, House Comm. on
the Judiciary, Comm. Print (1973) at 176, 181-82 (Articles 10 and 11)
(hereinafter ``Archbald Articles''). The Committee Print also contains
excerpts from the accompanying Report, Robert W. Archbald, Judge of the
United States Commerce Court, H. Rept. No. 946, 62d Cong., 2d sess.
(1912), 48 Cong Rec. (House) July 8, 1912 (8697) (hereinafter
``Archbald Impeachment Report'').
---------------------------------------------------------------------------
Similarly, in 1936, the House voted articles of impeachment
against Judge Halsted L. Ritter.\66\ In particular, Article I
of the Ritter Articles described financial dealings between
Judge Ritter and his former law partner, in which Judge Ritter
appointed the former law partner as a receiver in a civil case.
Thereafter, Judge Ritter approved the payment of a $75,000
receiver fee to the former partner (increasing the amount from
$15,000 that had been set by another judge), and then received
$4,500 back from the former partner.\67\
---------------------------------------------------------------------------
\66\Impeachment of Judge Halsted L. Ritter, H. Res. 422, 74th
Cong., 2d Sess. (March 2, 1936) and Amendments to Articles of
Impeachment Against Halsted L. Ritter, H. Res. 471, 74th Cong., 2d
Sess. (March 30, 1936), reprinted in Impeachment, Selected Materials,
House Comm. on the Judiciary, Comm. Print (1973) at 188-197 (H. Res
422), 198-202 (H. Res. 471) (hereinafter ``Ritter Articles'').
\67\Ritter Articles at 188-189. Judge Ritter was acquitted of that
Article in the Senate; however, it is not possible to determine the
basis for the verdict--whether it was for failure of proof or because
of some other reason. In any event, Judge Ritter was convicted of a
different Article--Article 7--which re-alleged the $4,500 cash payment
from his former partner.
---------------------------------------------------------------------------
Article I against Judge Porteous, in alleging misconduct
arising from his undisclosed financial relationships with
attorneys with a case in front of him, is consistent with the
sorts of charges that have supported Articles of Impeachment
against Judges Archbald and Ritter.
Article I also charges that by his conduct, Judge Porteous
has harmed the judicial system by bringing it into disrepute.
This harm constitutes a discrete injury that justifies
impeachment and removal, and numerous of the prior judicial
impeachments, including those of Judges Claiborne, Nixon,
Ritter, and Archbald, have included Articles that, after
reciting the essential facts, have alleged that by virtue of
that conduct the judge has brought such disrepute to the
Federal courts, and so undermined public confidence in the
courts, that the judge should be impeached.\68\
---------------------------------------------------------------------------
\68\See, e.g., Archbald Article 10 (charging that Judge Archbald's
acceptance of money from an officer of a railroad company was
``improper and had a tendency to and did bring his said office of
district judge into disrepute'').
---------------------------------------------------------------------------
Thus, when Judge Porteous denied a recusal motion and it
was later revealed that he had financial entanglements with
certain of the attorneys, not only did he harm the party
seeking a fair and impartial judge (Lifemark), but he harmed
the judicial system as a whole by inviting cynicism as to its
fairness and by suggesting to the public at large that, for a
litigant to prevail at trial, it may be necessary to pay for
meals or trips or to provide other things of value to the
presiding judge.\69\
---------------------------------------------------------------------------
\69\One of the Articles against Judge Harold Louderback accused him
of partiality so as ``to excite fear and distrust and to inspire a
widespread belief in and beyond said northern district of California
that causes were not decided in said court according to their merits,
but were decided with partiality and prejudice and favoritism to
certain individuals . . . all of which is prejudicial to the dignity of
the judiciary.'' H. Res. 403 (1933), Articles of Impeachment Against
Harold Louderback, reprinted in Impeachment, Selected Materials, House
Comm. on the Judiciary, Comm. Print (1973) at 185. This same language
was used in the articles of impeachment against Judge George W.
English, which accused him of conduct so as to ``excite fear and
distrust and to inspire a widespread belief . . . that causes were not
decided in said court according to their merits but were decided with
partiality and with prejudice and favoritism to certain individuals. .
. .'' English Impeachment Report at 163.
---------------------------------------------------------------------------
2. Article II
a. Overview
Article II describes Judge Porteous's corrupt relationship
with bail bondsman Louis Marcotte and his sister Lori Marcotte,
spanning from the late 1980's/ early 1990's through Judge
Porteous's tenure as a Federal judge and into approximately
2004. This article alleges what is in substance a bribery
scheme, whereby Judge Porteous solicited and accepted things of
value from the Marcottes and, in return Judge Porteous took
numerous actions to assist the Marcottes, both as a State judge
(in setting bonds and taking other judicial acts) and as a
Federal judge. This type of conduct is specifically set forth
in Article II, Section 4 of the Constitution as a grounds for
impeachment--that is ``Treason, Bribery, or other high Crimes
and Misdemeanors.''
b. Pre-Federal Bench Conduct--The Judge Archbald Precedent
Some of the conduct alleged to constitute a basis for
impeachment in Article II occurred prior to Judge Porteous
taking the Federal bench.\70\ Including such conduct as a basis
for impeachment is consistent with the impeachment of Judge
Archbald and with a common-sense interpretation of the
Constitution and Congress's impeachment power.
---------------------------------------------------------------------------
\70\Article IV is based exclusively on pre-Federal bench conduct.
However, since that issue is arguably implicated in Article II as well,
the legal discussion is set forth here.
---------------------------------------------------------------------------
Judge Archbald was a District Court Judge in the Middle
District of Pennsylvania from March 29, 1901 through January
31, 1911, when he was then appointed to the Circuit Court for
the Third Circuit. While on the Circuit Court, he also sat on
the United States Commerce Court.\71\ In 1912--while Judge
Archbald was a circuit court judge--the House voted articles of
impeachment against him, alleging improper conduct both as a
circuit judge sitting on the Commerce Court (Articles 1 through
6) and in his prior position as a district judge (Articles 7
through 12). Article 13 set forth a ``catch-all'' article
encompassing both district court and Circuit Court/Commerce
Court conduct. That Article alleged that Archbald ``as such
United States district judge and judge of the United States
Commerce Court,'' sought loans from persons who had an interest
in the matters ``pending in the court over which he presided as
judge of the district court, and in suits pending in the United
States Commerce Court, of which the said Robert W. Archbald is
a Member.''\72\
---------------------------------------------------------------------------
\71\The United States Commerce Court was in existence from 1910 to
1913. It heard appeals from orders of the Interstate Commerce
Commission.
\72\Archbald Impeachment Report at 182. Archbald was ultimately
convicted in the Senate of 5 of the 13 articles--Articles 1, 3, 4, and
5 involving Commerce Court conduct, and Article 13, a ``catch-all''
article involving both district court and Commerce Court conduct. VI
Cannon's Precedents of the House of Representatives, Sec. 512, p. 707.
---------------------------------------------------------------------------
The Archbald Impeachment Report specifically addressed the
fact that Articles 7 through 12 were based on judicial conduct
that occurred prior to Judge Archbald being appointed to the
Circuit Court (from which removal was sought). In the section
of the Report entitled ``Impeachment for Offenses Committed in
Another Judicial Office,'' the Report stated:
It is indeed anomalous if the Congress is powerless
to remove a corrupt or unfit Federal judge from office
because his corruption or misdemeanor, however vicious
or reprehensible, may have occurred during his tenure
in some other judicial office under the Government of
the United States prior to his appointment to the
particular office from which he is sought to be ousted
by impeachment, although he may have held a Federal
judgeship continuously from the time of the commission
of his offenses. Surely the House of Representatives
will not recognize nor the Senate apply such a narrow
and technical construction of the constitutional
provisions relating to impeachments.\73\
---------------------------------------------------------------------------
\73\Archbald Impeachment Report at 175.
In reaching this conclusion, the Archbald Impeachment
Report focused on the similarity of the prior office in which
Archbald committed impeachable conduct (district court judge)
to the office from which Archbald was holding at the time of
his impeachment (circuit court judge). The report further noted
that precedents from State courts supported impeachment of a
public official for misconduct that occurred in a prior term of
office, especially if ``the prescribed functions of such
offices were of the same general nature and susceptible to the
same malversations and abuse.''\74\
---------------------------------------------------------------------------
\74\Archbald Impeachment Report at 175.
---------------------------------------------------------------------------
In that the ``prescribed functions'' of Judge Porteous's
prior office as State court judge were ``of the same general
nature'' as the office of district court judge that he
presently occupies, and were thus ``susceptible to the same
malversations and abuse,'' the reasoning in Archbald fully
supports considering Judge Porteous's State judge conduct as a
basis for impeachment. It would simply be ``anomalous'' if
Congress were ``powerless to remove a corrupt or unfit Federal
judge from office because his corruption or misdemeanor,
however vicious or reprehensible, may have occurred during his
tenure in some other judicial office''--in this case, a State
judgeship that he occupied immediately prior to the Federal
judgeship from which impeachment is now sought.\75\
---------------------------------------------------------------------------
\75\Id.
---------------------------------------------------------------------------
c. Pre-Federal Bench Conduct--Views of Constitutional
Scholars
There is broad support among scholars that certain pre-
Federal bench conduct--especially of the sort that was
committed while Judge Porteous was a State judge--may properly
constitute a basis for impeachment. At the Task Force Hearing
of December 15, 2009, Professor Michael Gerhardt testified that
though Article II of the Constitution describes certain types
of conduct for which impeachment is warranted (``Treason,
Bribery, or other high Crimes and Misdemeanors''), ``it does
not say when the misconduct must have been committed,''\76\ and
certainly does not require that such conduct occur during the
tenure of the Federal office from which impeachment is sought.
As Professor Gerhardt noted, ``[t]he critical questions are
whether Judge Porteous committed such misconduct and whether
such misconduct demonstrates the lack of integrity and judgment
that are required in order for him to continue to function'' as
a Federal judge.\77\
---------------------------------------------------------------------------
\76\Prof. Gerhardt TF Hrg. IV at 30 (written statement of Prof.
Michael J. Gerhardt, University of North Carolina at 4) (emphasis in
original).
\77\Id.
---------------------------------------------------------------------------
The reason for considering pre-Federal bench conduct in
appropriate circumstances is evident from very basic examples.
Take the situation where the individual committed a truly
heinous crime prior to becoming a Federal judge:
Say, for instance, that the offence was murder--it is
as serious a crime as any we have, and its commission
by a judge completely undermines both his integrity and
the moral authority he must have in order to function
as a Federal judge. The timing of the murder is of less
concern that the fact of it; this is the kind of
behavior that is completely incompatible with the
public trust invested in officials who are sufficiently
high-ranking to be subject to the impeachment
process.\78\
---------------------------------------------------------------------------
\78\Id. This particular example is used to illustrate the principle
that pre-Federal bench conduct may justify impeachment; it is not
intended to suggest that such conduct must be comparable to homicide.
Rather, ``[f]rom there you simply have to ask yourself whether the
conduct as a State judge is sufficiently egregious to rise to an
impeachable standard.'' Prof. Geyh TF Hrg. IV at 36.
However, the crime or misconduct need not be comparable to
homicide to justify impeachment. As another professor
---------------------------------------------------------------------------
testified:
Let's take bribery. Imagine now a person who bribes
his very way into office. By definition, the bribery
here occurs prior to the commencement of office
holding. But surely that fact can't immunize the briber
from impeachment and removal. Had the bribery not
occurred, the person never would have been an officer
in the first place. \79\
---------------------------------------------------------------------------
\79\Prof. Amar TF Hrg. IV at 17.
Or, as the third expert testified: ``[A] quid pro quo
arrangement with bail bondsmen . . . is the kind of corruption
that fairly may be characterized as a violation of the public
trust. Who cares if it occurred before [Judge Porteous took the
Federal bench]?''\80\
---------------------------------------------------------------------------
\80\Prof. Geyh TF Hrg. IV at 36.
---------------------------------------------------------------------------
Thus, consistent with reasons set forth in the Archbald
Impeachment Report and those provided by three legal scholars
at the Task Force Hearing, there is simply no basis in the
Constitution, nor is there a basis in policy, for the House or
Senate to adopt a narrow or technical reading of the
Constitution so as to divest themselves of the power to
consider pre-Federal bench conduct as a grounds for
impeachment.
d. Federal Bench Conduct
Even though Judge Porteous's conduct while a Federal judge
did not involve taking judicial actions to benefit the
Marcottes, the Federal bench conduct constituted a continuation
of the same unlawful relationship that was in place when Judge
Porteous was a State judge, and consisted of Judge Porteous's
efforts to help the Marcottes form relationships with no fewer
than four State judicial officers as well as other business
executives. By these acts, Judge Porteous assisted the
Marcottes--whom he knew to be corrupt--to expand their reach in
the 24th Judicial District Court (24th JDC). By attending meals
with the Marcottes and other judicial officers, Judge Porteous
not only received the benefit of those free meals, but provided
the opportunity for the Marcottes to show off their
relationship with him and to put their generosity on display by
paying for him and the others who were in attendance. Though
there is no evidence that Judge Porteous specifically
communicated to these judges that he sought or intended for the
Marcottes to form corrupt relationships with them, from his
personal experience Judge Porteous knew that the Marcottes gave
him and others things of value to induce favored treatment and
thus had every reason to know that the Marcottes would seek to
establish the same relationship with new judges. Thus, Judge
Porteous was instrumental in helping the Marcottes form a bond
with one State judge, Ronald Bodenheimer, with whom the
Marcottes formed a corrupt relationship that continued for
several years until he was arrested and convicted.\81\ Judge
Porteous's vouching for the Marcottes was a critical causal
factor in the perpetuation of the corruption in the setting of
bail bonds in the 24th JDC even when Judge Porteous was no
longer on the State bench.\82\
---------------------------------------------------------------------------
\81\Lori Marcotte Dep. at 47 (Ex. 76).
\82\Canon 2B of the Code of Conduct for United States Judges (1999)
provides: ``A judge should not lend the prestige of the judicial office
to advance the private interests of others[.]'' Again, it is noteworthy
that the sort of conduct that is described in Article II, which the
Committee has concluded warrants Judge Porteous's impeachment, also
runs afoul of standards of conduct promulgated by the Judicial
Conference.
---------------------------------------------------------------------------
3. Article III
Article III alleges that Judge Porteous committed numerous
acts of misconduct in the course of his personal bankruptcy,
including making false material statements under oath and
otherwise violating court orders. This Article is analogous to
the tax evasion, perjury, and obstruction of justice bases of
impeachment set forth in the impeachments of Judge Harry E.
Claiborne, Judge Walter Nixon and Judge Samuel B. Kent--each of
which involved dishonesty under oath in arguably personal and/
or financial matters.
In the case of Judge Harry E. Claiborne, a United States
District Judge for the District of Nevada, the House voted four
Articles of Impeachment. Articles I and II alleged that Judge
Claiborne had filed false income tax returns for calendars
years 1979 and 1980 under penalties of perjury. The returns
were false because they reported total income in the amount of
$80,227.04 and $54,251.00 respectively, when ``as he then and
there well knew and believed, he received and failed to report
substantial income [from legal fees] in addition to that stated
on the return.'' Each Article further alleged that because of
such conduct, Judge Claiborne ``was and is guilty of
misbehavior and was and is guilty of a high crime and
misdemeanor and, by such conduct, warrants impeachment and
trial and removal from office.''\83\
---------------------------------------------------------------------------
\83\Claiborne Impeachment Report at 1-2.
---------------------------------------------------------------------------
In the impeachment of District Court Judge Walter Nixon,
the first two Articles each alleged, in substance, discrete
incidents of perjury before the grand jury, namely, that ``[i]n
the course of his grand jury testimony and having duly taken an
oath that he would tell the truth, the whole truth, and nothing
but the truth, Judge Nixon did knowingly and contrary to his
oath make material false or misleading statements to the grand
jury.'' Each Article summarized the substance of the alleged
perjurious statement. Article I, for example, alleged that
``[t]he false or misleading statement was, in substance, that
Forrest County District Attorney Paul Holmes never discussed
the Drew Fairchild case with Judge Nixon.'' Each Article
concluded: ``Wherefore, Judge Walter L. Nixon, Jr., is guilty
of an impeachable offense and should be removed from
office.''\84\
---------------------------------------------------------------------------
\84\Walter Nixon Impeachment Report at 1-3.
---------------------------------------------------------------------------
Finally, the House voted four Articles of Impeachment
against Judge Samuel B. Kent. Articles III and IV alleged, in
substance, that Judge Kent obstructed justice by making false
statements to the Fifth Circuit Special Investigatory Committee
(Article III) and to the FBI when it investigated his conduct
(Article IV).\85\
---------------------------------------------------------------------------
\85\H. Res. 430, 111th Cong. (2009) (Articles of Impeachment
Against Judge Samuel B. Kent).
---------------------------------------------------------------------------
Judge Porteous's conduct in his personal bankruptcy invites
disrepute upon the judiciary. The need for honesty by the
debtor in bankruptcy proceedings is obvious, and dishonesty by
a Federal judge as a debtor in bankruptcy has particular
ramifications. As Chief Judge Duncan Keir of the United States
Bankruptcy Court for the District of Maryland testified:
[Because the conduct at issue] occurs by a Federal
judge, I think it has a potential effect of
denigrating, if you will, the integrity of the court.
What happens if 6 months later somebody has been found
by a bankruptcy court to have violated these oaths and
denied a discharge, and they appeal it, and the appeal
goes in front of Judge Porteous? What is that argument
going to be? You did it? I did it? It is untenable.\86\
---------------------------------------------------------------------------
\86\Keir TF Hrg. II at 81. Thus, though Judge Porteous's bankrutpcy
conduct may have been ``personal'' in some respects, its consequences
directly impact his ability to carry out his judicial responsibilities.
Further, Judge Porteous's failure acts in the nature of filing false
financial disclosure forms that concealed his liabilities for years,
though not charged as part of Article III, constitute part of the
evidence that implicates Judge Porteous's fitness to hold judicial
office.
Article III against Judge Porteous is consistent with these
Articles against Judges Claiborne, Nixon and Kent. As with the
Judge Claiborne impeachment, Article III against Judge Porteous
charges that he filled out forms related to his own personal
financial situation under penalty of perjury, on which he
concealed material facts. And, as with the perjury and acts of
obstruction alleged in the impeachment Articles against Judge
Nixon and Judge Kent, Judge Porteous's dishonest statements on
court forms and his violation of a court order occurred in the
context of a Federal judicial proceeding and demonstrated a
disregard of, and contempt for, the authority of the
supervising Federal court.\87\
---------------------------------------------------------------------------
\87\Professor Gerhardt noted that the violation of the bankruptcy
laws ``reflects a level of disdain for the law that I think is just
simply incompatible with being a Federal judge.'' Prof. Gerhardt TF
Hrg. IV at 36.
---------------------------------------------------------------------------
4. Article IV
Article IV alleges that Judge Porteous committed a fraud on
the judicial confirmation process by making material false
statements to the FBI and on his Senate Judiciary Committee
Questionnaire in response to questions as to whether there was
anything in his past that could be used to blackmail or coerce
him. Judge Porteous answered ``no'' to such inquiries,
notwithstanding his unlawful financial relationships with
certain attorneys (Creely and Amato) and with the Marcottes.
For reasons set forth in the discussion of Article II, it
is appropriate to consider pre-Federal bench conduct as a basis
to impeach. Even though Judge Porteous did not make the
statements in a judicial capacity, and even though this conduct
did not carry over into his tenure as a Federal judge, the
false statements corrupted the judicial appointment and
rendered it illegitimate from its inception. As Professor Amar
testified before the Task Force, after stating why pre-Federal
bench ``bribery'' would constitute impeachable conduct:
Now what is true of bribery is equally true of fraud. A
person who procures a judgeship by lying to the
President and lying to the Senate has wrongly obtained
his office by fraud and is surely removable via
impeachment for that fraud.\88\
---------------------------------------------------------------------------
\88\Prof. Amar TF Hrg. IV at 18.
Professor Gerhardt agreed that ``lying to or defrauding the
Senate in order to be approved as a Federal judge'' is likely
to justify impeachment. First of all, that conduct is serious
as a stand-alone matter in that it ``plainly erodes the
essential, indispensable integrity without which a Federal
judge is unable to do his job.''\89\ Professor Gerhardt noted,
however, that in the case of Judge Porteous, it is not
necessary to determine whether the false statements themselves
demonstrated his unfitness.
---------------------------------------------------------------------------
\89\Prof. Gerhardt TF Hrg. IV at 24.
For, by defrauding the Senate in his confirmation
proceedings, Judge Porteous has engaged in misconduct
that is egregious and has a more than obvious
connection to his present position. The nexus is that
Judge Porteous deprived the Senate of information that
would undoubtedly have changed the outcome in his
confirmation hearing. His failure to disclose is
nothing less than an attack on the integrity of the
confirmation process and an affront to the
constitutional responsibilities of the President and
the Senate.\90\
---------------------------------------------------------------------------
\90\Prof. Gerhardt TF Hrg. IV at 31.
The questions are sufficiently precise for purposes of
concluding that the false answers were knowing and intentional,
---------------------------------------------------------------------------
and warrant impeachment. As Professor Amar testified:
[E]veryone knows what is actually at the core of the
question[s]. Are you an honest person? Are you a person
of integrity? Do you have the requisites to hold a
position of honor, trust, and profit? Do you have
judicial integrity? That is at the core of all these
questions. That is not at the periphery.
And what he lied about was his gross misconduct as a
judge: taking money from parties, taking money in cash
envelopes, not reporting any of this to anyone. . . .
* * *
[W]e know what those questions at their core [were]
about, and he lied at the core. There is vagueness at
the periphery, but this was really central.\91\
---------------------------------------------------------------------------
\91\Prof. Amar TF Hrg. IV at 34-35. Professor Amar further noted
that these questions did not constitute some sort of ``trap'' for the
unwary: ``All he has to do is say, [`]I do not wish to be considered
for this position.[']'' Id. at 42.
VIII. THE FACTS UNDERLYING ARTICLE I--JUDGE PORTEOUS'S RELATIONSHIPS
WITH ATTORNEYS ROBERT CREELY, JACOB AMATO, JR., DON GARDNER AND
LEONARD LEVENSON, AND HIS HANDLING OF THE LILJEBERG CASE
A. Introduction
Judge Porteous, while a State court judge, was particularly
close to four attorneys: Jacob Amato, Jr., with whom Judge
Porteuos had practiced law; Robert Creely, Amato's partner who
also practiced with Judge Porteous; and local attorneys Leonard
Levenson and Donald Gardner. These individuals regularly paid
for expensive lunches for Judge Porteous, accompanied him on
travel, including travel to gambling establishments, hosted him
on hunting trips, and otherwise subsidized his lifestyle.
Creely and Amato, in particular, provided Judge Porteous
substantial cash from ``curatorships'' assigned to Creely by
Judge Porteous.
Judge Porteous's personal and financial relationships with
these attorneys, as well as his financial dependence upon them,
became particularly significant in connection with his handling
of a civil case, Lifemark Hospitals of La., Inc., v. Liljeberg
Enterprises, Inc.,\92\ when he was a Federal judge. A few weeks
prior to the scheduled November 1996 non-jury trial before
Judge Porteous, the defendants (the Liljebergs) brought in
Amato and Levenson as trial counsel. In response, the
plaintiffs (Lifemark) filed a motion to recuse Judge Porteous,
arguing that Amato's and Levenson's late entry in the case and
their known close relationships with Judge Porteous supported
the conclusion that Amato and Levenson were hired precisely
because of those relationships. Counsel for Lifemark, however,
was unaware of any prior financial relationship between Judge
Porteous and Amato, and unaware that Amato and his partner
Creely had provided Judge Porteous thousands of dollars in cash
while Judge Porteous was a State judge.
---------------------------------------------------------------------------
\92\Civ. Action No. 93-1794 (E.D. La.). See PACER Docket Report
(Ex. 50).
---------------------------------------------------------------------------
Judge Porteous denied Lifemark's recusal motion in a
fashion that concealed his respective relationships with Amato
and Levenson. Lifemark then added Gardner to their trial team.
Trial was ultimately held in June and July 1997. Subsequent to
trial, while the case was pending his decision, and while his
financial circumstances were significantly deteriorating, Judge
Porteous continued to seek money and accept other things of
value from these four attorneys.
Finally, in April 2000, as his financial situation became
increasingly dire (and just weeks prior to his consulting with
a bankruptcy attorney), Judge Porteous ruled for the
Liljebergs. This verdict, if it had stood, would have been
worth hundreds of thousands of dollars in legal fees to Amato
(and his partner Creely) and Levenson--men who had supported
Judge Porteous's life-style for years. Judge Porteous's
decision was reversed by the Fifth Circuit Court of Appeals, in
a scathing opinion that castigated Judge Porteous's legal
reasoning.
B. Relationships with the Attorneys Pre-Liljeberg--
Meals, Trips, Hunting and Entertainment\93\
---------------------------------------------------------------------------
\93\There is no attempt here to break out the meals, entertainment,
and trips that occurred prior to and subsequent to Judge Porteous's
appointment as a Federal judge.
---------------------------------------------------------------------------
Meals and Related Entertainment. Beginning with Judge
Porteous's years on the State court bench and continuing
through his tenure on the Federal bench, the four attorneys--
Creely, Amato, Levenson and Gardner--routinely provided Judge
Porteous with meals, trips, and entertainment, as well as
covered other expenses.
Amato and Creely took Judge Porteous to lunch frequently.
When asked how frequently Judge Porteous paid, Amato testified
``[n]ot very often.''\94\ As Amato noted: ``He [Porteous]
probably paid for one or two of them.''\95\ As to the frequency
of the lunches: ``It would depend upon what his schedule was
and my schedule. I would say we probably met two to three times
a month over a, you know, a period of time. And depending--you
know, some months it might have been more. Some months less. It
just depended.''\96\ Amato identified the restaurants he took
Judge Porteous to as including: Red Maple, Beef Connection,
Ruth's Chris Steak House, Fitzgerald's, and Smith &
Wollensky's.\97\ Amato also recalled paying for Porteous's
swearing in party as a Federal judge at the ``Jefferson
Orleans,''\98\ at which about 100 to 200 people attended.\99\
This would have been in late 1994. This party would have cost
several thousand dollars.\100\
---------------------------------------------------------------------------
\94\Amato 5th Cir. Hrg. at 254 (Ex. 20).
\95\Amato 5th Cir. Hrg. at 255 (Ex. 20). See also Amato TF Hrg. I
at 104 (Judge Porteous paid for lunch for Amato ``at least on one
occasion'').
\96\Amato GJ at 15 (Ex. 18).
\97\Amato 5th Cir. Hrg. at 255 (Ex. 20).
\98\Amato GJ at 38 (Ex. 18).
\99\Amato GJ at 66 (Ex. 18).
\100\Amato GJ at 39 (Ex. 18).
---------------------------------------------------------------------------
Gardner described purchasing Judge Porteous numerous meals
over time--``50, 60 lunches a year when he was a [New Orleans]
district court judge.''\101\ In response to questioning at the
Task Force deposition, Gardner agreed that he had paid for
``countless, countless, countless more meals'' than Judge
Porteous had paid for Gardner.\102\
---------------------------------------------------------------------------
\101\Gardner GJ at 69 (Ex. 33). See also, Gardner Dep. at 8 (lunch
``once a week'' when Judge Porteous was a State judge) (Ex. 36).
\102\Gardner Dep. at 37 (Ex. 36).
---------------------------------------------------------------------------
Levenson also testified to treating Judge Porteous to
lunches over the years. Levenson testified that, starting while
Judge Porteous was a State court judge, these lunches ``would
average . . . maybe over the course of a year three or four
times a month, or more. Some months would be or some weeks
would be more. Some would be less.''\103\ Levenson paid
``[m]ost of the time;''\104\ Judge Porteous paid ``[v]ery
rarely.''\105\ ``To say that I could specifically remember him
picking up another lunch bill, no. Did he do it? I'm sure he
did. Was it rare? Yes.''\106\ Levenson listed the restaurants
they went to as Mandina's, Ruth's Chris Steak House, Smith &
Wollensky's, Bon Ton, Red Maple, and the Beef Connection.\107\
Judge Porteous at the Fifth Circuit Hearing testified that
Levenson took him out to places such as Ruth's Chris Steak
House and Smith & Wollensky's.\108\
---------------------------------------------------------------------------
\103\Levenson GJ at 10 (Ex. 25).
\104\Levenson GJ at 10 (Ex. 25).
\105\Levenson GJ at 11 (Ex. 25).
\106\Levenson GJ at 12 (Ex. 25).
\107\Levenson GJ at 15 (Ex. 25); Levenson Dep. at 28 (Ex. 30).
Judge Porteous stipulated to Levenson's and Forstall's grand jury
testimony at the Fifth Circuit Hearing. 5th Cir. Hrg. at 341.
\108\Porteous 5th Cir. Hrg. at 128 (Ex. 10). Another attorney,
Warren A. Forstall, stated he would take Judge Porteous to lunch at
Ruth's Chris Steak House and Smith & Wollensky's, and that he
[Forstall] always paid the bill. Forstall GJ at 30 (Ex. 38). The Ruth's
Chris Steak House bills, on average, were $100. Id. at 31.
---------------------------------------------------------------------------
Former State Judge Ronald Bodenheimer testified that when
he was first elected, Judge Porteous gave him pointers on being
a judge. Judge Porteous told Bodenheimer that he would ``never
have to buy lunch again. . . . There will always be somebody to
take you to lunch.''\109\
---------------------------------------------------------------------------
\109\Bodenheimer testified that Judge Porteous told him:
Congratulations kid, you know. Now, let me tell you, give
you some pointers about being a judge. Number one, you'll
never be known as Ronnie again. You'll be judge for the
rest of your life. Number two, you'll never have to buy
lunch again OK. There will always be somebody to take you
to lunch. And number three, always wash your rear end so
---------------------------------------------------------------------------
the attorneys have a clean place to kiss.
Bodenheimer GJ at 10 (Ex. 87). See also Bodenheimer Dep. at 12 (Ex.
86).
These attorneys continued taking Judge Porteous out for
lunches after he became a Federal judge, including during the
period when they had the Liljeberg case pending before him.
Creely took Judge Porteous on several hunting and fishing
trips while Judge Porteous was on the State bench. For example,
Creely identified a dove hunt in Mexico in September 1990,
where he paid for Judge Porteous. Creely also took Judge
Porteous on another dove hunting trip to Mexico--probably in
September 1993.\110\ The cost of these trips paid for by Creely
would have been approximately $1,500 per person plus air
fare.\111\ Creely also took Judge Porteous fishing on a
houseboat Creely leased at Delacroix Island on more than 20
occasions--each time hosting Judge Porteous.\112\
---------------------------------------------------------------------------
\110\Creely GJ at 19-20 (Ex. 11). Creely also testified there may
have been another trip to Mexico in 1995 (when Judge Porteous was a
Federal judge). He said he knows he took Judge Porteous twice, and
maybe a third time. Id at. 20-21. Creely also traveled to Las Vegas
with Judge Porteous a few times when Judge Porteous was a State judge.
Creely recalled going to Las Vegas with Judge Porteous as part of a
fund-raiser to retire campaign debt of a local candidate in September
1990 , Creely GJ at 29-31 (Ex. 11) and in January 1991 on a Jefferson
Bar ``Continuing Legal Education'' trip. Creely GJ at 32 (Ex. 11).
Caesars Palace records reflect that Creely gambled at that casino in
January 1991.
\111\Creely GJ at 19-20. Creely also testified there may have been
another trip to Mexico in 1995 when Judge Porteous was a Federal judge.
He testified he knows he took Judge Porteous twice, and maybe a third
time. Id. at 20-21.
\112\Creely GJ at 24-25 (Ex. 11).
---------------------------------------------------------------------------
Levenson went on trips to Las Vegas with Judge Porteous, as
part of a group, on more than one occasion when Judge Porteous
was a State judge. Levenson also recalled going on ``one . . .
maybe two'' trips to Las Vegas. One of the trips was to the
Riviera Hotel where Levenson shared a room with Judge Porteous.
Attorney Warren Forstall also went on that trip and roomed with
State Judge George Giacobbe. Although Levenson did not have a
specific recollection of what he may have paid for Judge
Porteous, he answered affirmatively that he ``could state with
confidence . . . that [he] paid for some aspects of drinks or
meals or other entertainment . . . for which Judge Porteous
would have been a beneficiary.''\113\
---------------------------------------------------------------------------
\113\Levenson Dep. at 18-19 (Ex. 30).
---------------------------------------------------------------------------
Gardner also recalled going to Las Vegas with Judge
Porteous on several Jefferson Bar Association ``Continuing
Legal Education'' trips, which he thought occurred in the
1970's.\114\
---------------------------------------------------------------------------
\114\Gardner GJ at 23 (Ex. 33).
---------------------------------------------------------------------------
C. Cash from Creely and Amato (Pre-Liljeberg)
Amato and Creely formed a law partnership in about 1975
that lasted until 2005. It was a true partnership--all the
income and expenses were shared, they held joint accounts, they
held themselves out as partners, and took equal draws.\115\
---------------------------------------------------------------------------
\115\Creely Dep. at 3 (Ex. 16).
---------------------------------------------------------------------------
While he was on the State bench, Judge Porteous requested
cash from Creely on several occasions. Creely provided cash to
Judge Porteous in response to those requests. As Creely
testified:
Q. L[C]an you just describe a typical instance that
would characterize how this request would be made and
the sorts of dollar amounts which were encompassed by
these requests?
A. LIn reference to the dollar amounts, it would be
hard for me to say. He would ask me for money when we
were together socially or fishing or one of those
things. He would ask for money.
Q. LDid he give you reasons?
A. LYes. He would have--it would be a number of
reasons, just a number of reasons, like needing to pay
tuition, needing to meet his obligations, financial
obligations.\116\
---------------------------------------------------------------------------
\116\Creely Dep. at 6 (Ex. 16). Before the Grand jury, Creely
testified: ``Every time he came to us it was a car note he couldn't
pay. His house was being foreclosed upon. He couldn't pay his kids'
tuition.'' Creely GJ at 61 (Ex. 11). At the Fifth Circuit hearing,
Creely stated that Judge Porteous requested the money ``for various
personal issues.'' . . . ``[I]t would be things like tuition, different
things that he needed in his--in his personal life.'' Creely 5th Cir.
Hrg. at 199 (Ex. 12).
The amounts were as much as $500 to $1,000 and Creely never
perceived these payments to be loans.\117\ Creely explained
that he and his partner, Amato, would take draws from the firm
account in the form of checks payable to the two men, would
cash the checks, and would give Judge Porteous the cash. When
asked to describe the mechanics of how he would get the money
to give to Judge Porteous, Creely testified:
---------------------------------------------------------------------------
\117\Creely Dep. at 7 (Ex. 16).
[I] think sometimes I had to go cash a check, take a
draw, yes. Yes, sir. I did not always have money to
hand him. I would have to get--I'd have to say, you
know--``You know, his tuition's due. He can't pay his
tuition, Jake [Amato].'' And he`d say, ``all right,''
you know. ``How much money does he need?'' And I would
say five hundred or a thousand dollars, whatever. I'm
just--and I wanna try to be fair to him, OK, to
whatever number. And then we'd go get a check cashed
and give him the money.\118\
---------------------------------------------------------------------------
\118\Creely GJ at 50 (Ex. 11). See also Creely TF Hrg. I at 20
(Judge Porteous would ask for money for ``tuition'' and ``living
expenses'').
Even though the requests were made to Creely, and the
actual provision of money to Judge Porteous came from Creely,
the payments to Judge Porteous were split 50-50 between Creely
and Amato.\119\
---------------------------------------------------------------------------
\119\Creely Dep. at 8 (Ex. 16).
---------------------------------------------------------------------------
Amato testified consistently as to Judge Porteous's reasons
for needing money (as reported to Amato by Creely), the
frequency of the requests, the procedures for getting the money
to Judge Porteous, and the fact that the payments were split
between Amato and Creely. Amato testified that ``Bob [Creely]
would come in and say, you know, `Porteous is looking for
money.''' After the request was made: ``We both took draws to
do it. We would split it. . . .'' Amato characterized the
reasons Judge Porteous gave as follows: ``[H]e couldn't pay the
tuition for his children. He was gonna lose his house. They
were gonna take his car. His daughter was a maid in the
Washington Ball and he needed money. Those are the kind of
stories that I would get through Bob Creely that Porteous
needed money. . . . [H]e [Judge Porteous] was always poor
mouthing, you know, he was always busted. He always--you know,
it was always a catastrophe. It was always something that, you
know--that, you know, hard to ask a--it's hard to turn down a
friend, you know.''\120\
---------------------------------------------------------------------------
\120\Amato GJ at 25-28 (Ex. 18). See also Amato GJ at 61 (Ex. 18)
(to obtain money Amato and Creely would each take a draw).
---------------------------------------------------------------------------
D. The Curatorship Kickback Scheme with Creely and Amato
1. Creely's and Amato's Testimony
Creely ultimately balked at providing monies to Judge
Porteous. Creely testified: ``I told him, quite frankly, I
thought it was an imposition on our friendship for him to
continue to ask me for money.''\121\ As Creely stated in his
Task Force deposition: ``I got tired of the requests for every
request he made. I was tired of it.''\122\
---------------------------------------------------------------------------
\121\Creely TF Hrg. I at 21.
\122\Creely Dep. at 7 (Ex. 16). Creely testified consistently
before the Fifth Circuit: ``[I] told him that I--we could not continue
giving him money, I couldn't continue giving him money.'' Creely 5th
Cir. Hrg. at 204 (Ex. 12).
---------------------------------------------------------------------------
As a result of Creely's discontent, and in order to
generate cash that Creely and Amato could then use to provide
Judge Porteous money as he requested, Judge Porteous began
increasingly to assign Creely ``curatorships.''\123\ Judge
Porteous took this initiative at a time when Creely was
resisting giving him more money. Creely described how this
scheme began as follows:
---------------------------------------------------------------------------
\123\Creely described the duties of a curator as follows: ``[W]hat
you do is, you represent an absentee that they can't find. So when
somebody would get their house foreclosed on and they would leave and
they couldn't find them to serve them with the foreclosure proceedings
the court would appoint a lawyer. And I would be the curator in the
Porteous instances, in which case then I would have to--the bank would
give me the last known address--write a letter, registered letter. Then
I'd have to run an ad in the newspaper. And then I'd have to get a
certified copy. . . . But a curator is to represent a person that they
can't find.'' Creely GJ at 101-02 (Ex. 11).
[T]his borrowing turned into this, as you said, burden,
and that's a good word 'cause I, you know, can use many
words for it. But he--there was a time I said, you
know, ``I just can't keep doing this man, I can't keep
---------------------------------------------------------------------------
supporting your family.'' . . .
And so I told him I had to stop. I gotta stop doing
this. All right . . . But he started sending
curatorships over to my office. . . . And he would send
like two or three at a time. . . .
And he then started calling and saying, ``Look. I've
been sending you curators, you know. Can you give me
the money for the curators?'' I said, ``Man.'' So I
talked to my law partner. I said, ``Jake, you know, man
what do we do?'' He says, ``Well, just go ahead and
give it to him.'' We decided to give him the money. We
would deduct the expenses. We would pay income taxes on
it. . . .
But the practice became that he--and it got to the
point that he would call my secretary and say,
``Dianne, how may curators do I have over there?'' And
then she'd come in and it was like a--it was a bad
deal. I mean, it's a bad feeling. OK. And she would
say, she'd say, ``Hey, you got four or five curators''
and say, ``He's calling wanting the money on [sic].''
And I said, ``Well, just go get two draws, one for
Jake, one for me'' and then I would give him the money.
Either me or Jake would give him the money.\124\
---------------------------------------------------------------------------
\124\Creely GJ at 51-54 (Ex. 11).
Creely would receive a fee of approximately $200 for a
curatorship, which went into the law firm accounts. Creely did
not want these curatorships,\125\ even though they involved
minimal work.\126\ Rather, Creely viewed these curatorships as
``basically a way for me to supply him funds as before instead
of coming out of my pocket. It was being provided through the
curatorships.''\127\
---------------------------------------------------------------------------
\125\At the Task Force Hearing, when asked if he wanted Judge
Porteous to assign him curatorships, Creely answered, ``No, I did
not,'' and testified they were not important to his business. Creely TF
Hrg. I at 21-22.
\126\All the work, consisting primarily of placing notices in the
newspapers and preparing routine notices to be filed with the court,
was done by Creely's secretary.
\127\Creely 5th Cir. Hrg. at 209-10 (Ex.12).
---------------------------------------------------------------------------
This was not a dollar-for-dollar arrangement. At the Fifth
Circuit Hearing, Creely testified that Judge Porteous received
more than 50% of the curatorship fees. Creely also confirmed
that the payments of the curatorship fees to Judge Porteous
were at Judge Porteous's request.\128\ Notwithstanding the
mechanics of the scheme, Creely resisted characterizing it as a
``kickback'' scheme because Creely did not believe he was
getting anything out of the arrangement:
---------------------------------------------------------------------------
\128\Creely 5th Cir. Hrg. at 208-09 (Ex. 12).
It had nothing to do with, ``Look, why don't you give
me these and I'll give you that back,'' or ``Do
something for me and--you know, and I'll give you this
back.'' It was just--it just occurred that he--you
know, he got the curator money.\129\
---------------------------------------------------------------------------
\129\Creely 5th Cir. Hrg. at 209-10 (Ex.12). The term ``kickback''
is occasionally used in this Report notwithstanding Creely's resistence
to it, and notwithstanding the evidence that suggests that he and Amato
were not thrilled about this financial relationship, about engaging in
these acts to give Judge Porteous money at Judge Porteous's
instigation.
In the Task Force Hearing, Creely similarly resisted the
use of the term ``kickback'' to describe the relationship,
describing the fact that he had received the curatorships from
Judge Porteous as a ``justification to help him out so that I
didn't have to go and spend my own money on him.''\130\
Nonetheless, Creely understood that Judge Porteous linked his
assignment of curatorships to Creely's giving cash back to
Judge Porteous.\131\
---------------------------------------------------------------------------
\130\Creely TF Hrg. I at 23.
\131\From Creely TF Hrg. I at 23:
Q. [S]o he was taking official acts [assigning
---------------------------------------------------------------------------
curatorships] to enrich himself, correct?
A. [Creely] I can't speak for him, but that was my
understanding.
Q. L[Mr. Johnson] The curatorship process, you say that
you would not--there was no agreement before this
scheme started, but didn't it become apparent to you
during the course of the curatorship scheme that this
was a way of you being able to pay Judge Porteous?
A. LIt evolved into that, yes. He began to rely upon
the curators, began to call for them, and we
rationalized he is asking for money, giving him the
money. And it wasn't all of the money, but, yes, it--
that is what it sounds like.\132\
---------------------------------------------------------------------------
\132\Creely TF Hrg. I at 38.
Creely's partner, Amato, confirmed the essentials of this
arrangement. Amato testified that ``Mr. Creely came to me 1 day
and said that Tom--or Judge Porteous asked him for some money
based upon sending curatorships. . . . Bob [Creely] would tell
me Judge Porteous needs, you know, $500, $1,000, whatever it is
for the curatorships, and we would each draw a check for
whatever half the amount that he requested.''\133\ In response
to questioning by Task Force Chairman Schiff, Amato testified:
---------------------------------------------------------------------------
\133\Amato TF Hrg. I at 100. He also testified before the Task
Force: ``[J]udge Porteous sent curator cases to Bob Creely and at some
point asked that he be--receive some of that money.'' Id. Amato has
been consistent throughout his various appearances. Before the grand
jury, Amato testified that Judge Porteous ``would send curatorships to
Bob Creely and then he would ask Bob to, you know, `I need some money
for one of these catastrophes. And, you know, I've sent you 10 or 15 or
20' or however many `curatorships so, you know, send me a check or' not
`Send me a check.' But you know, `I need some money.''' Amato GJ at 61
(Ex. 18). At the Fifth Circuit Hearing, he testified: ``At some point
in time when Judge Porteous was on the State bench, Bob Creely started
getting a number of curator cases. And after a period of time that that
went on, Bob came to me and said that, `The judge is--Judge Porteous
wants some of the curator fees. What should we do?' . . . Well, I told
him I didn't like the idea but I guess it's something we had to do.''
Amato 5th Cir. Hrg. at 238 (Ex. 20).
Q. L[Mr. Schiff] [W]as there ever any doubt in your
mind that what he [Judge Porteous] was asking for
during the period he was sending you curatorships was
part of the money he was sending you for the
---------------------------------------------------------------------------
curatorships?
A. LNo, no doubt.\134\
---------------------------------------------------------------------------
\134\Amato TF Hrg. I at 107.
Amato knew that giving money to Judge Porteous was
wrong.\135\ When asked whether he felt he had a choice as to
giving Judge Porteous money, he replied: ``Yes, I think we had
a choice, but I just wasn't strong enough to put an end to it.
To put an end to it, I would have to break up my law
partnership and break up a friendship that I have had over a
number of years with Judge Porteous, and I wasn't strong
enough.''\136\
---------------------------------------------------------------------------
\135\Amato TF Hrg. I at 111.
\136\Amato TF Hrg. I at 101.
---------------------------------------------------------------------------
2. Judge Porteous's Statements About His Financial Relationship with
Amato and Creely at the Fifth Circuit Hearing
In his testimony at the Fifth Circuit Hearing, Judge
Porteous confirmed the essential aspects of his receiving cash
from Amato and Creely at the Fifth Circuit Hearing. He admitted
that: 1) he received cash from Creely and Amato; 2) at some
time, Creely expressed his displeasure with giving him cash;
and 3) thereafter his receipts of cash were linked to his
assigning Creely curatorships. At that Hearing, he testified:
Q. LWhen did you first start getting cash from Messrs.
Amato, Creely, or their law firm?
A. LProbably when I was on State bench.
Q. LAnd that practice continued into 1994, when you
became a Federal judge, did it not?
A. LI believe that's correct.\137\
---------------------------------------------------------------------------
\137\Porteous 5th Cir. Hrg. at 119 (Ex. 10).
Judge Porteous also admitted that these transactions
``occasionally'' followed his assignment of curatorships to
Creely, though he claimed he did not know if the amounts paid
back to him ``matched each time'' the curatorship fees.\138\
---------------------------------------------------------------------------
\138\Porteous 5th Cir. Hrg. at 130-33 (Ex. 10).
---------------------------------------------------------------------------
Furthermore, Judge Porteous confirmed that he started
assigning Creely the curatorships after Creely expressed
resistance to giving Judge Porteous money:
Q. LDo you recall Mr. Creely refusing to pay you money
before the curatorships started?
A. LHe may have said I needed to get my finances under
control, yeah.\139\
---------------------------------------------------------------------------
\139\Porteous 5th Cir. Hrg. at 134 (Ex. 10).
Judge Porteous implied in his cross-examination of Creely
and Amato at the Fifth Circuit Hearing that he gave Creely and
Amato the curatorships so they would have funds to pay an
individual they had hired at Judge Porteous's request. Amato
denied this to be the case and Creely did not recall it.\140\
---------------------------------------------------------------------------
\140\Creely 5th Cir. Hrg. at 232-33 (Ex. 12); Amato 5th Cir. Hrg.
at 260-62 (Ex. 20). In any event, this would not provide any legitimate
basis for curatorship fees to have been given back to Judge Porteous.
---------------------------------------------------------------------------
3. Judge Porteous's Knowledge of Amato's Financial Participation
Even though Judge Porteous's requests for and receipts of
cash went through Creely, the evidence establishes that Judge
Porteous knew that the monies coming back to him were from
Amato as well. Judge Porteous was close to Amato, had practiced
with him, and the Amato-Creely partnership was well-known. When
asked at the Task Force Hearing if Judge Porteous would have
known the money was coming from Amato as well as Creely, Amato
responded: ``Of course. We owned our own office building. We
had checks. We had business cards. We filed pleadings and, you
know, Amato and Creely, a professional law corporation.''\141\
---------------------------------------------------------------------------
\141\Amato TF Hrg. I at 100. Amato elaborated in his deposition:
``[W]e had a professional law corporation, Amato and Creely, PLC. We
filed tax returns. We had office signs. We had cards, checks. We owned
the office building together. . . .'' ``[W]e had a pension profit
sharing plan. . . .'' He went on to testify:
Q. Now, in the course of those encounters from your vantage
point, would Judge Porteous have known that you and Bob
---------------------------------------------------------------------------
were true, full-blown partners?
A. I don't, I don't know anything else we could have done
to indicate otherwise.
* * *
Q. And following up, therefore, on the previous set of
questions, is there any question in your mind that Judge
Porteous would have known that the money that was coming
back from Mr. Creely for those curatorships was an equal
part money coming from you?
A. I would, I would think so. I mean, I, I don't know what
was in his mind, but I would think he would imagine that,
you know.
Amato Dep. at 5-7 (Ex. 24).
Further, Judge Porteous, in questioning Amato at the Fifth
Circuit Hearing, evidenced his understanding that the money
provided to Judge Porteous came from Amato in addition to
Creely:
Q. L[J]ust so I'm clear, this money that was given to
me, was it done because I'm a judge, to influence me,
or just because we're friends?
A. LTom, it's because we were friends and we've been
friends for 35 years. And it breaks my heart to be
here.\142\
---------------------------------------------------------------------------
\142\Amato 5th Cir. Hrg. at 258-59 (Ex. 20).
4. Frequency and Amounts of Cash from Amato and Creely
Throughout the various proceedings--the DOJ investigation,
the Fifth Circuit Hearing, and the Task Force Inquiry--efforts
have been made to quantify the amounts of cash given to Judge
Porteous by Creely and Amato. Creely's and Amato's estimates
have varied.
a. Grand Jury Testimony
In his March 2006 questioning before the grand jury, Creely
estimated that the total amount given to Porteous could have
been more or less than $10,000.
Q. LAnd how much cash we're talking about?
A. L[I] don't know how much it is. I mean, it could be
$10,000. It could be less than that.\143\
---------------------------------------------------------------------------
\143\Creely GJ at 44 (Ex. 11).
In his May 2006 questioning before the grand jury, Amato
testified that the amount was greater than $10,000 and less
than $50,000, agreeing that it was ``probably'' over $10,000,
but ``I don't think it ever approached anywhere near
[$50,000].\144\
---------------------------------------------------------------------------
\144\Amato GJ at 36-37 (Ex. 18). Amato testified that he thought
all the funds given to Judge Porteous came from the ``curatorship''
scheme. Amato 5th Cir. Hrg. at 242 (Ex. 20).
---------------------------------------------------------------------------
b. Fifth Circuit Hearing
In October 2007, before the Fifth Circuit, Creely was asked
how much he and Amato gave to Judge Porteous. He responded: ``I
would say approximately $10,000 thereabout. Maybe more than
that but at least 10,000.''\145\
---------------------------------------------------------------------------
\145\Creely 5th Cir. Hrg. at 201 (Ex. 12).
---------------------------------------------------------------------------
In response to questioning by Judge Benavides, Amato
testified consistently with his grand jury testimony as to the
frequency and total amount of the cash requests--this time
agreeing that it could be from $10,000 to $20,000:
A. LIt has just--it's been so long ago and so much
water under the bridge since then, I can't tell you
specifically how many draws we took, how much money we
gave, and when did we give it to him.
Q. LAll we need is an amount.
A. LIt was never an amount that was astonishing. It was
always a couple thousand dollars.
Q. LA couple thousand dollars sometimes every 6 months
and sometimes every three or 4 weeks?
A. LYeah, but, I mean, it wasn't a constant thing. It
wasn't, you know, ``Look, I expect a check every
Thursday'' or Friday for 2 weeks or anything like that,
no.
* * *
Q. LAll right. But there's no doubt that there had
been, you say, not more than $50,000; but would be fair
to say ten to twenty thousand dollars in cash?
A. LI would say, yes, close to that.\146\
---------------------------------------------------------------------------
\146\Amato 5th Cir. Hrg. at 242, 247 (Ex. 20).
In his testimony before the Fifth Circuit, Judge Porteous
admitted receiving cash from Amato and Creely, but would not be
pinned down on an amount. He did not deny that the total amount
---------------------------------------------------------------------------
could have been in excess of $10,000. He testified as follows:
Q. LJudge Porteous, over the years, how much cash have
you received from Jake Amato and Bob Creely or their
law firm?
A. LI have no earthly idea.
* * *
Q. LIt could have been $10,000 or more. Isn't that
right?
A. LAgain, you're asking me to speculate. I have no
idea is all I can tell you.
Q. LWhen did you first start getting cash from Messrs.
Amato, Creely, or their law firm?
A. LProbably when I was on State bench.
Q. LAnd that practice continued into 1994, when you
became a Federal judge, did it not?
A. LI believe that's correct.\147\
---------------------------------------------------------------------------
\147\Porteous 5th Cir. Hrg. at 118-19 (Ex. 10).
c. Task Force Inquiry--Creely and Amato Depositions
In Creely's Task Force Deposition, he stated that the
amount paid to Judge Porteous by Amato and himself was close to
$20,000 (including approximately $2,500 paid in 1999, discussed
below). He testified:
Q. LWhat is your best feel for how much that [what you
and Amato gave Judge Porteous] would have amounted to?
A. LDuring the twenty year period of time he was on the
bench, it would be about $10,000 a piece.
Q. LSo that would be about $20,000; is that right?
A. LYes.
Q. LAnd this was all cash, correct?
A. LYes.\148\
---------------------------------------------------------------------------
\148\Creely Dep. at 8-9 (Ex. 16).
At his deposition, Amato acknowledged that the amount could
---------------------------------------------------------------------------
have even been greater than $20,000:
Q. LNow, referring again to these monies from the
curatorships, at some point in prior testimony the
amount of $10,000 was used to describe in some sense
the amount of monies which had come from you and Creely
to Judge Porteous when he was a State judge. If upon
the analysis of the curatorship records the amount
proves to be greater by some substantial amount, is
that a fact that you would take dispute with?
A. LNo. I don't--I have no idea how much the curators
amounted to.
Q. LOkay. So if it was over 20,000 or over 30,000 or
whatever the dollar amount is, that is not an amount
that you would disagree with?
A. LRight.\149\
---------------------------------------------------------------------------
\149\Amato Dep. at 7-8 (Ex. 24).
d. Task Force Hearing Testimony
At the Task Force Hearing, Creely, consistent with his
deposition testimony, estimated the amount that he and Amato
paid to Judge Porteous was approximately $20,000.\150\
---------------------------------------------------------------------------
\150\Creely TF Hrg. I at 24.
---------------------------------------------------------------------------
Amato, like Creely, estimated at the Task Force Hearing
that the amount was ``over $10,000, but how much over, I don't
know.''\151\ He did not disagree with Creely's estimate that
the amount could have been as much as $20,000.\152\
---------------------------------------------------------------------------
\151\Amato TF Hrg. I at 101. See also Amato TF Hrg. I at 108
(agreeing that the total amount was ``in the neighborhood of 10
[thousand] to 20 thousand [dollars]'').
\152\Amato TF Hrg. I at 101.
---------------------------------------------------------------------------
e. Analysis of the Curatorship Records from the 24th
Judicial District Court
Subsequent to Creely's deposition but before Amato was
deposed, the Task Force obtained from Amato a computer printout
of records that were retained in his office's computer system
that listed the curatorships assigned to Creely.\153\ The
printout revealed that Creely had over 350 curatorships
assigned to him (from all judges--not just Judge Porteous) in
the late 1980's (when the firm's financial records were first
computerized) and early 1990's. Of the cases listed in that
printout, the Clerk's Office of the 24th Judicial District
Court (``24th JDC'') located and made certified copies of the
curatorship cases that, based on case assignment information,
appeared to be the ones that were most likely to have been
handled by Judge Porteous. Those records have been provided to
the Task Force. The analysis of those records reflects the
following:
---------------------------------------------------------------------------
\153\Ex. 193. These were identified by Amato's long-time accountant
Jody Rotolo. See also Rotolo Dep. (Ex. 191). Mr. Amato provided the
records to the Task Force without a subpoena.
---------------------------------------------------------------------------
Total number of curatorships assigned to Creely: 350
Total number of these cases located by the 24th JDC
Clerk's Office: 209
Total number of theses cases assigned to Creely by
Judge Porteous: 192
The reimbursement amount to Creely would have started at
$150 in 1988, increased to $200 sometime in 1988, and stayed at
$200 until 1994. The payment to Creely for the 192 curatorships
that have been identified is approximately as shown in the
following chart:\154\
---------------------------------------------------------------------------
\154\This chart has been marked as Ex. 190. A similar chart, used
at the November 17, 2009 Task Force Hearing, listed 191 curatorship
cases. Further review has identified an additional curatorship assigned
by Judge Porteous to Creely, and has revealed a few changes in the
amounts in some of the years. The curatorships are listed on the
Exhibit List as Exhibits 189(1) through 189(227), and includes a few
curatorships that were assigned to Creely by other judges.
Thus, the best evidence to date is that a minimum, Judge
Porteous assigned curatorships to Creely resulting in Creely
receiving fees amounting to over $37,500 from 1988 through
1994.
E. Cash and Things of Value from Gardner
Donald Gardner was another attorney from whom Judge
Porteous asked for money and other things of value, and who
also ended up as an attorney in the Liljeberg case discussed
below. His testimony, including his description of Judge
Porteous's behavior, is consistent with (and thus serves to
corroborate) the testimony of Creely and Amato.
As to requests for cash, Gardner testified he gave Judge
Porteous money on more than one occasion, at least sometimes in
connection with Judge Porteous's gambling. Gardner's grand jury
testimony does not pin him down on the frequency of these
events or the dates they occurred:
I wouldn't say often, but when I was with Tom
[Porteous], he'd come up to me . . . Donnie, you got
$200? Can I borrow $200 from you? I'm a little short.
I'd give him the $200. Can I borrow $100 from you? You
know. And I'd give it to him.\155\
---------------------------------------------------------------------------
\155\Gardner GJ at 31 (Ex. 33).
---------------------------------------------------------------------------
Similarly:
I think he [Porteous] was always short. I think that's
why, you know, he would ask me from time to time for
money for stuff, you know, to buy gifts, to do this or
whatever.
At the gambling casinos at the CLE [Continuing Legal
Education trips], you know, I remember. . . . I gave
him a couple hundred dollars. He, you know, Donnie, I'm
busted. You got a couple hundred dollars on you? Like I
said, I didn't gamble. I always had money if you don't
gamble. \156\
---------------------------------------------------------------------------
\156\Gardner GJ at 62-63 (Ex. 33). Gardner provided more detail in
his deposition testimony, testifying: ``[On occasions] when we were at
CLE [Continuing Legal Education], he would come up and say, `Don, you
got a hundred dollars?' And sometimes I'd give him a couple 20's. I'd
give him--I'd count out five 20's or a hundred dollars. But I have to
tell you, there was never any occasions where Tom Porteous ever asked
me for any large sums of money or did I give him that. It would just
be, `Hey, I'm short. You've got a few dollars?''' Gardner Dep. at 32
(Ex. 36).
At the Fifth Circuit Hearing, Gardner estimated the amount
he gave Judge Porteous to be ``[p]robably less than
[$]3,000.''\157\ Gardner agreed with the questioner that his
payments to Judge Porteous were ``in small amounts, like $300
or a hundred dollars, when he [Judge Porteous] would
ask.''\158\ Gardner specifically recalled an instance when he
gave Judge Porteous $200 so that Judge Porteous could buy a
Christmas present (drinking glasses) for his wife.\159\ In the
grand jury, Gardner testified that the total amount was more
like $2,000:
---------------------------------------------------------------------------
\157\Gardner 5th Cir. Hrg. at 461 (Ex. 32).
\158\Gardner 5th Cir. Hrg. at 467 (Ex. 32).
\159\Gardner GJ at 31-32 (Ex. 33).
Q. LHow many times did he ask you for cash in the
amount of--in the range of a hundred dollars or in the
range of between fifty and a hundred dollars?
* * *
I'm asking in total.
A. LIn total from the time I've known Tom to present,
most of it was before he was a Federal judge. But I
would imagine that the total would be close--and I keep
going through adding it up in my mind--$2,000, give or
take.\160\
---------------------------------------------------------------------------
\160\Gardner Dep. at 32-33 (Ex. 36).
Gardner also recalled paying for some home improvements
(hanging fans, paying a sheet rock installer), paying to have
Judge Porteous's car towed when it broke down, as well as
buying Judge Porteous an expensive fountain pen.\161\
---------------------------------------------------------------------------
\161\Gardner GJ at 32-34 (Ex. 33); Gardner 5th Cir. Hrg. at 468
(Ex. 32).
---------------------------------------------------------------------------
As he did with Creely, Judge Porteous assigned Gardner
curatorships. Gardner denied that Judge Porteous asked for cash
back from these appointments.\162\
---------------------------------------------------------------------------
\162\Gardner 5th Cir. Hrg. at 464 (Ex. 32). There might have been
as many as one per month on the average. Gardner Dep. at 24-25 (Ex.
36). Gardner testified he received 50 curatorships from Judge Porteous,
if not more. This would have meant approximately $10,000 in fees. (The
curatorship reimbursement rates at the applicable time period were $150
and $200.) Even if Judge Porteous did not have the same understanding
with Gardner as he did with Creely regarding the curatorships, it is
significant that Judge Porteous assigned the curatorships to an
individual who in turn was spending money on him on a regular basis. It
is reasonable to conclude that Judge Porteous knew and intended that by
assigning Gardner curatorships, he was generating cash for Gardner that
Gardner could, in turn, use for Judge Porteous's benefit.
---------------------------------------------------------------------------
Judge Porteous called Gardner as a witness on his behalf at
the Fifth Circuit Hearing. In response to questioning from
Judge Porteous at that Hearing, Gardner testified as follows:
When we were practicing lawyers, we were Christmas
shopping for the wives; and I believe that you had
bought a gift and you were short. And you asked me if I
had some money on me. You wanted to buy some glasses--
glasses, and I think I gave you some money then.
At various times, you'd asked me for this or that
when we were out either eating or drinking and I'd
advance it to you or give it to you. I did so as a
friend.\163\
---------------------------------------------------------------------------
\163\Gardner 5th Cir. Hrg. at 461 (Ex. 32). Judge Porteous asked
for and accepted money from Gardner to buy a Christmas present for his
wife:
We [Judge Porteous and Gardner] were shopping one Christmas
and he wanted to buy Mel [Judge Porteous's wife Carmella]--
we would go out for Christmas and try to find a gift for
our wives, and he wanted toasting glasses. He was short and
he asked me, he says, ``Don, can I borrow $200 for toasting
---------------------------------------------------------------------------
glasses?''
They were in the 160, 180 range. And I had it on me because
I had Christmas money and loaned it to him.
Notwithstanding Gardner's use of the word ``loan,'' Judge Porteous
never repaid him. Gardner Dep. at 34-35 (Ex. 36).
At the Fifth Circuit Hearing, Judge Porteous admitted
receiving cash from Gardner prior to his becoming a Federal
judge.
Q. LNow, other than Messrs. Amato and Creely, who else
had--what other lawyers--lawyer friends of yours have
given you money over the years?
A. LGiven me money?
Q. LMoney, cash.
A. LGardner may have. Probably did.
* * *
Q. LAnd when is the last time Mr. Gardner gave you
money?
A. LBefore I took the Federal bench, I'm sure.
Q. LOkay. And do you recall how much?
A. LAbsolutely not.\164\
---------------------------------------------------------------------------
\164\Porteous 5th Cir. Hrg. at 129 (Ex. 10).
F. Creely's Statements as Part of Judge Porteous's Background Check
In August 1994, Creely was interviewed by the FBI as part
of Judge Porteous's background check. The FBI write-up of the
interview reports:
CREELY has never known the candidate to use illegal
drugs or to abuse alcohol or prescription drugs. . . .
CREELY advised that he knows of no financial problems
on the part of the candidate and the candidate appears
to live within his economic means.\165\
---------------------------------------------------------------------------
\165\Creely FBI Interview, Aug. 1, 1994, PORT 0477-78 (Ex. 69(b))
(also marked as Creely Dep Ex. 50 (Ex. 250)).
In his August 28, 2009 Task Force deposition, Creely was
questioned about his statements concerning Judge Porteous's
drinking habits and financial circumstances. Although Creely
stated that Judge Porteous ``drank excessively,'' and that ``he
did, in my opinion, drink a lot,'' he also stated that Judge
Porteous ``was a very intelligent man'' and that ``[h]is
drinking in no way impaired his ability as a judge.''\166\ In
his Task Force Hearing testimony, Creely acknowledged having
seen Judge Porteous in circumstances in which Judge Porteous
had obviously abused alcohol.\167\
---------------------------------------------------------------------------
\166\Creely Dep. at 11, 13, 14 (Ex. 16).
\167\Creely TF Hrg. I at 25.
---------------------------------------------------------------------------
As to Judge Porteous's financial circumstances, Creely
testified both at the Task Force Hearing and during his
deposition that his statements to the FBI were not truthful. In
his deposition, Creely testified:
Q. L[I]f the FBI's write-up of its interview with you
indicated that you, and I'm quoting, ``advised that
[you] knew of no financial problems on the part of the
candidate and the candidate appears to live within his
economic means,'' do you have any reason to doubt that
you said that?
A. LNo sir.
Q. LAnd that wouldn't have been true, would it? That
would not have been true, because, in fact, you did
know that he had financial problems, correct?
A. LYes.\168\
---------------------------------------------------------------------------
\168\Creely Dep. at 13 (Ex. 16).
Creely stated he made those statements because he held
Judge Porteous in ``very high esteem,'' had a lot of affection
for him, and would not have wanted to do anything to harm his
candidacy for the Federal judgeship.''\169\ Before the Task
Force, Creely testified: ``I didn't want to do anything to
impede his [Judge Porteous's] advancement. He was a friend. He
was a very manipulative friend. And I didn't want to--I didn't
want to hurt the guy.\170\
---------------------------------------------------------------------------
\169\Creely Dep. at 12 (Ex. 16).
\170\Creely TF Hrg. I at 25.
---------------------------------------------------------------------------
G. The Liljeberg Proceedings
On January 16, 1996, as a Federal judge, Judge Porteous was
assigned a complicated civil action, Lifemark Hospitals of La.,
Inc. [``Lifemark''] v. Liljeberg Enterprises, Inc.
[``Liljeberg'' or ``the Liljebergs''].\171\ This case involved
a dispute between a hospital and a pharmacy, and implicated
bankruptcy law, real estate law, and contract law. The case was
filed in 1993, and had been assigned to other judges before
being transferred to Judge Porteous in January 1996. The matter
was particularly contentious, with millions of dollars at
stake.
---------------------------------------------------------------------------
\171\Civ. Action No. 93-1794 (E.D. La.). See PACER Docket Report
(Ex. 50).
---------------------------------------------------------------------------
1. September-October 1996--Amato and Levenson Are Hired by the
Liljebergs; Lifemark files a Motion to Recuse Judge Porteous
The Liljeberg case was set for a non-jury trial before
Judge Porteous beginning on November 4, 1996. On September 19,
1996, approximately 6 weeks prior to the scheduled trial date,
the Liljebergs filed a motion to enter the appearances of Amato
and Levenson as their attorneys.\172\ As Amato described it:
``I was approached by a lawyer by the name of Ken Fonte who
represented the Liljebergs and asked if I would be interested
in the case. And I told him `I'm always interested in
litigation and I would take a look at the case.'''\173\
According to Amato, the Liljebergs ``were looking for people
[attorneys] who were, you know, not only competent, but had
some rapport with the court.''\174\ Amato and Levenson were
hired on a contingent fee basis, that is, they would not
receive anything unless the Liljebergs prevailed.\175\ Amato
estimated that if the Liljebergs prevailed at trial, his fee
would have been between $500,000 and $1,000,000.\176\ The
motion to enter Amato's appearance clearly identified him with
the firm ``Amato and Creely.''\177\ Amato described the case as
``exceptionally important'' to him.\178\
---------------------------------------------------------------------------
\172\The Motion by the Liljebergs to enter the appearance of
attorneys Amato and Levenson was dated September 16, 1996 (Ex. 51(a)).
Judge Porteous granted the motion on September 26, 1996 (Ex. 51(b)).
\173\Amato GJ at 41 (Ex. 18).
\174\Amato GJ at 42 (Ex. 18).
\175\Amato GJ at 44 (Ex. 18). See also, Motion to Recuse, Lifemark
Hospitals of La., Inc., v. Liljeberg Enterprises, Inc., Civ. Action No.
93-1794 (E.D. La.) (Oct. 1, 1996) at 3 (stating that Levenson and Amato
were to receive a contingent fee) (Ex. 52).
\176\Amato GJ at 50 (Ex. 18). Amato stated he believed that the
Liljebergs had a good case. Amato GJ at 54 (Ex. 18).
\177\Ex Parte Motion of Liljeberg Enterprises Inc. To Substitute
Counsel, Lifemark Hospitals of La., Inc., v. Liljeberg Enterprises,
Inc., Civ. Action No. 93-1794 (E.D. La.) (Sept. 16, 1996) (Ex. 51(a)).
\178\Amato TF Hrg. I at 102.
---------------------------------------------------------------------------
The decision of the Liljebergs to add Amato and Levenson so
close to the trial date aroused the concerns of Lifemark's
lawyer, Joseph Mole, who spoke to other attorneys who knew
Judge Porteous, Amato and Levenson:
I learned that--from people who would talk to me . . .
--that Mr. Levenson and Mr. Amato were very close to
Judge Porteous, that Mr. Amato had been his law
partner, as had Mr. Creely--Amato and Creely was the
firm--and Mr. Levenson was very close to Judge Porteous
and had--I think had been to a fifth circuit conference
or two as Judge Porteous's guest, that they frequently
socialized in--in the way of lunches, hunting trips,
and things like that, and that they--I also knew--well,
I formed the opinion that there was--there was a high
likelihood that the case--it was a bench trial. There
was no jury. So it would be entirely a decision by the
judge in a case that had been valued as high as $200
million for my client that the case would be handled in
the way by the judge that would be favorable to his
friends, and that was of deep concern.\179\
---------------------------------------------------------------------------
\179\Mole TF Hrg. I at 141. See also Mole 5th Cir. Hrg. at 168 (Ex.
65); Mole GJ at 9-10 (Ex. 64).
On October 1, 1996, Mole, on behalf of his client Lifemark,
filed a motion to recuse Judge Porteous. The motion focused on
the appearance of impropriety suggested by the fact that just
weeks prior to trial, the Liljebergs retained two lawyers who
were close friends with Judge Porteous, neither having
particular expertise in complicated business litigation.\180\
---------------------------------------------------------------------------
\180\Motion to Recuse, Lifemark Hospitals of La., Inc., v.
Liljeberg Enterprises, Inc., Civ. Action No. 93-1794 (E.D. La.) (Oct.
1, 1996) (Ex. 52).
---------------------------------------------------------------------------
Lifemark's recusal motion did not allege an actual conflict
of interest or that Amato (or his partner Creely) had given
money to Judge Porteous because Lifemark's counsel (Mole) had
no idea what, if anything, Amato (or Creely) had ever given to
Judge Porteous.\181\ If he had known of prior cash dealings
between Judge Porteous and Amato, he would have used that fact
in his motion,\182\ and he believed that if a prior financial
relationship existed recusal would have been mandatory.\183\
Further, Mole believed recusal would have been required even if
the relationship were between Judge Porteous and Creely, and
not Judge Porteous and Amato, because Creely and Amato were
partners and it was the firm Amato & Creely that had entered
its appearance for Lifemark--not just Amato.\184\
---------------------------------------------------------------------------
\181\Mole 5th Cir. Hrg. at 169-70 (Ex. 65).
\182\Mole GJ at 14 (Ex. 64). The various investigations have not
disclosed that Levenson gave Judge Porteous cash at any time.
\183\Mole TF Hrg. I at 142.
\184\Mole TF Hrg. I at 142.
---------------------------------------------------------------------------
Because he was unaware of a prior financial relationship,
as Mole himself described: ``[I] danced around that issue [of a
financial relationship] pretty carefully because I didn't want
to accuse the judge that was going to try my case of doing
something of which I had no evidence.''\185\ Thus, Mole argued
``that the judge shouldn't be handling a case where two of his
closest friends, if not his very closest friends, had just
signed up 6 weeks before trial, whose facts had been in
litigation since 1987 in one court or another, and that I
didn't believe they had anything to add, other than their
relationship with the judge, and that if the result came out in
a certain way, it would create an appearance that things had
not been right.''\186\
---------------------------------------------------------------------------
\185\Mole 5th Cir. Hrg. at 171 (Ex. 65).
\186\Mole TF Hrg. I at 141-42.
---------------------------------------------------------------------------
As to the appearance of impropriety, the recusal motion
stated:
Your Honor's relationship with Messrs. Amato and
Levenson is well known to the legal community. It needs
no elaboration in this memorandum. This would be of no
concern were it not for the timing of their addition,
and the fact that the [Liljebergs] clearly believe that
influence with governmental bodies, including judges,
can be bought.
* * *
Under the circumstances, it is respectfully submitted
that Your Honor is duty bound to remove any appearance
of impropriety. In spite of Your Honor's attempts to be
fair, the obviousness of the Liljebergs' intentions,
coupled with the timing of the hiring of these lawyers,
will always leave questions in the eyes of any
objective observer, the ``man in the street,'' who is
aware of the Court's relationship with Messrs. Amato
and Levenson and the Liljebergs' attitudes toward the
political and judicial systems. [citation omitted.]
Under such circumstances, Lifemark suggests that Your
Honor, the Federal courts, and the litigants in this
case (including the Liljebergs) are all best served by
Your Honor's recusal.\187\
---------------------------------------------------------------------------
\187\[Lifemark's] Motion to Recuse, Lifemark Hospitals of La., Inc.
v. Liljeberg Enterprises, Inc., Civ. Action No. 93-1794 (E.D. La., Oct.
1, 1996) [hereinafter ``Motion to Recuse''] at 3, 5-6 (Ex. 52).
The Motion went on to argue that the applicable standard for
review of Judge Porteous's role was ``how things appear to the
well informed, thoughtful and objective observer, rather than
the hypersensitive, cynical and suspicious person.''\188\
---------------------------------------------------------------------------
\188\Motion to Recuse at 7 (citing United States v. Jordan, 49 F.3d
156, 156 (5th Cir., 1995)) (Ex. 52).
---------------------------------------------------------------------------
The Liljebergs filed their Opposition dated October 9,
1996, signed by Levenson;\189\ Lifemark filed its Reply to the
Opposition, dated October 11, 1996;\190\ and the Liljebergs
filed a Memorandum in Opposition to Lifemark's Reply, dated
October 15, 1996, again signed by Levenson.\191\ That final
pleading attacked Lifemark's factual allegations, not because
they were untrue, but because they were unproven, lacked
specificity, and, in essence, alleged nothing more than the
existence of ``a friendly relationship:''
---------------------------------------------------------------------------
\189\[The Liljebergs'] Memorandum in Opposition to Lifemark's
Motion to Recuse Lifemark Hospitals of La., Inc., v. Liljeberg
Enterprises, Inc., Civ. Action No. 93-1794 (E.D. La., Oct. 9, 1996)
[hereinafter ``Memorandum in Opposition''] (Ex. 53).
\190\Lifemark's Reply Memorandum to Liljeberg Enterprises, Inc.'s
Opposition to Motion to Recuse, Lifemark Hospitals of La., Inc., v.
Liljeberg Enterprises, Inc., Civ. Action No. 93-1794 (E.D. La., Oct.
11, 1996) [hereinafter ``Lifemark's Reply to the Liljeberg's
Opposition''] (Ex. 54).
\191\Memorandum of Liljeberg Enterprises, Inc. and St. Judge
Hospital of Kenner La., Inc., in Opposition to Reply Memorandum of
Lifemark on Motion to Recuse, Lifemark Hospitals of La., Inc., v.
Liljeberg Enterprises, Inc., Civ. Action No. 93-1794 (E.D. La., Oct.
15, 1996) (hereinafter ``Liljeberg's Opposition to Lifemark's Reply'')
(Ex. 55).
In its original supporting memorandum, Lifemark uses
terms such as ``close,'' ``extremely close'' and
``closest'' to characterize the relationship between
the Court and Messrs. Amato and Levenson. . . .
However, such vague superlatives provide absolutely no
information upon which an objective, thoughtful and
well-informed person could reasonably rely in
determining whether grounds exist to question the
Court's impartiality.
* * *
Lifemark presents no evidence that a reasonable
person would attribute to the mere existence of a
friendly relationship a significant likelihood that a
judge would violate Federal law and subordinate his
oath of office just to help a lawyer earn a fee.\192\
---------------------------------------------------------------------------
\192\Liljeberg's Opposition to Lifemark's Reply at 2 (Ex. 55).
Judge Porteous, of course, knew that his respective
relationships with Amato and Creely went well beyond the ``mere
existence of a friendly relationship.''
2. Judge Porteous's Statements at the Recusal Hearing
On October 16, 1996, Judge Porteous held a hearing on the
recusal motion. Both Levenson and Amato were present. In that
hearing, the following colloquy occurred:
The Court:
LLet me make also one other statement for
the record if anyone wants to decide whether I am a
friend with Mr. Amato and Mr. Levenson--I will put that
to rest for the answer is affirmative, yes. Mr. Amato
and I practiced the law together probably 20-plus years
ago. Is that sufficient? . . . So if that is an issue
at all, it is a non-issue.\193\
---------------------------------------------------------------------------
\193\Transcript of Proceedings, Plaintiff's Motion to Recuse,
Lifemark Hospitals, Inc., v. Liljeberg Enterprises, Inc., Civ. Action
No. 93-179-4-T (E.D. La., Oct. 16, 1996) (hereinafter ``Recusal Hearing
Transcript'') at 4 (Ex. 56).
---------------------------------------------------------------------------
* * *
Mr. Mole:
LI am happy to tell the Judge what the
public perception is of the relationship.
* * *
LI don't know what the Court wants to do
with that issue, whether or not the Court wants to make
a statement or accept the statement.
The Court:
LNo, I have made the statement. Yes, Mr.
Amato and Mr. Levenson are friends of mine. Have I ever
been to either one of them's house? The answer is a
definitive no. Have I gone along to lunch with them?
The answer is a definitive yes.\194\
---------------------------------------------------------------------------
\194\Recusal Hearing Transcript at 6-7 (Ex. 56).
---------------------------------------------------------------------------
* * *
Mr. Mole:
LThe public perception is that they do dine
with you, travel with you, that they have contributed
to your campaigns.
The Court:
LWell, luckily I didn't have any campaigns.
So I'm interested to find out how you know that. I
never had any campaigns . . .
* * *
The Court:
LThe first time I ran, 1984, I think is the
only time when they gave me money.\195\
---------------------------------------------------------------------------
\195\Recusal Hearing Transcript at 8 (Ex. 56). Judge Porteous spent
several transcript pages on the issue of whether the attorneys had
given him campaign contributions and challenged Mole on that issue:
[D]on't misstate, don't come up with a document that
clearly shows well in excess of $6700 with some innuendo
that that means that they gave that money to me. If you
would have checked your homework, you would have found that
that was a Justice for All Program for all judges in
Jefferson Parish. But go ahead. I don't dispute that I
---------------------------------------------------------------------------
received funding from lawyers.
Recusal Hearing Transcript at 10 (Ex. 56).
* * *
The Court:
L[T]his is the first time a motion for my
recusal has ever been filed. . . . I guess it got my
attention. But does that mean that any time a person I
perceive to be friends who I have dinner with or
whatever that I must disqualify myself? I don't think
that's what the rule suggests. . . . Courts have held
that a judge need not disqualify himself just because a
friend, even a close friend, appears as a lawyer.\196\
---------------------------------------------------------------------------
\196\Recusal Hearing Transcript at 10-11 (Ex. 56).
---------------------------------------------------------------------------
* * *
The Court:
LWell you know the issue becomes one of, I
guess the confidence of the parties, not the attorneys.
. . . My concern is not with whether or not lawyers are
friends. . . . My concern is that the parties are given
a day in court which they can through you present their
case, and they can be adjudicated thoroughly without
bias, favor, prejudice, public opinion, sympathy,
anything else, just on law and facts. . . .
L I have always taken the position that if
there was ever any question in my mind that this Court
should recuse itself that I would notify counsel and
give them the opportunity if they wanted to ask me to
get off. . . .
L[In the Bernard case] the court said
Section 450 requires not only that a Judge be
subjectively confident of his ability to be even handed
but [that an] informed, rational objective observer
would not doubt his impartiality. . . . I don't have
any difficulty trying this case. . . .
L[I]n my mind I am satisfied because if I
had any question as to my ability, I would have called
and said, ``Look, you're right.''\197\
---------------------------------------------------------------------------
\197\Recusal Hearing Transcript at 17-19 (Ex. 56).
Judge Porteous denied the recusal motion after the argument
in open court on October 16, 1996. The complete written opinion
---------------------------------------------------------------------------
signed the following day states:
On Wednesday, October 16, 1996, the court heard oral
argument on Lifemark Hospitals, Inc.,'s Motion to
Recuse. The Court, having reviewed the motion to
recuse, the opposition, the reply, and the response to
the reply and having heard oral argument, for reasons
stated in open court denies the Motion to Recuse.\198\
---------------------------------------------------------------------------
\198\Judgment [Denying Motion to Recuse], Lifemark Hospitals of
La., Inc., v. Liljeberg Enterprises, Inc., Civ. Action No. 93-1794
(E.D. La., Oct. 17, 1996) (Ex. 57).
Lifemark sought a writ of mandamus from the Fifth Circuit. That
petition was also denied.\199\
---------------------------------------------------------------------------
\199\Petition for Writ of Mandamus, Brief of Petitioner [Lifemark],
In re: Lifemark Hospitals of Louisiana, Inc., No. 96-31098 (5th Cir.,
Oct. 24, 1996) (Ex. 58); Order [Denying Petition for Writ of Mandamus],
In re: Lifemark Hospitals of Louisiana, Inc., No. 96-31098 (5th Cir.,
Oct. 28, 1996) (Ex. 59).
---------------------------------------------------------------------------
3. Discussion of the Recusal Hearing
The attorneys--Levenson and Amato--made no factual
disclosures. Amato, who was present in the courtroom during the
recusal hearing, viewed the issue of disclosure and recusal to
be Judge Porteous's issue--not Amato's. He thus took his lead
as to disclosure from Judge Porteous, and was not going to
embarrass the judge by stating that in the past he and his
partner had given Judge Porteous tens of thousands of dollars
funded by curatorships assigned by Judge Porteous. As Amato
testified at his Task Force deposition:
Q. LOkay. Now, in connection with that motion to recuse
Judge Porteous, would it be fair to say that you
considered it really Judge Porteous'[s] decision as to
whether or not he should be recused?
A. LOh, absolutely.
Q. LAnd would it be fair to say that you followed his
lead in terms of disclosures which could be made or
should be made relative to your relationship with Judge
Porteous?
A. LYes. That Porteous--that was Porteous'[s]
obligation.
* * *
Q. L. . . Was the fact that you all had given back to
Judge Porteous money from the curators disclosed in the
course of the Liljeberg litigation?
A. LNo, it was not disclosed.
Q. LAnd if that, if that was a fact that could have or
should have been disclosed, that was really in your
mind something that Judge Porteous would have to do?
A. LYes.\200\
---------------------------------------------------------------------------
\200\Amato Dep. at 8-10 (Ex. 24).
Amato, in the Task Force Hearing, before the Fifth Circuit, and
in the grand jury, has acknowledged the materiality of this
prior relationship to Judge Porteous's handling of the recusal
motion.\201\
---------------------------------------------------------------------------
\201\See also Amato TF Hrg. I at 103; Amato 5th Cir. Hrg. at 248
(Ex. 20); Amato GJ at 57 (Ex. 18).
---------------------------------------------------------------------------
With Amato and Levenson remaining silent in the courtroom,
the only factual disclosures about the relationships were made
by Judge Porteous, and these were limited to the facts that he
was ``a friend with Mr. Amato and Mr. Levenson,'' had been a
former law partner with Amato, had ``gone along to lunch with
them'' but had not ``been to either one of them's house,'' and
that the first time he ran for judge was ``the only time when
they gave me money.''
Judge Porteous did not mention that Amato, through his firm
Amato & Creely, had given him thousands of dollars in cash,
including monies funded through the assignment of curatorships
to Creely. And, as discussed, Judge Porteous would have known,
and in fact subsequently acknowledged, that the funds paid by
Creely under that arrangement came from Amato as well. Judge
Porteous did not address Mole's specific statement that he
[Mole] had heard Judge Porteous had traveled with the
attorneys, and thus, did not disclose, for example, that he had
gone to Las Vegas with Levenson (and shared a room with him)
and had gone hunting and fishing with Amato and Creely on
several occasions. Judge Porteous also failed to disclose that
Amato and Creely paid for his party to celebrate his
appointment to the Federal bench.\202\
---------------------------------------------------------------------------
\202\There is also some evidence that Judge Porteous's secretary,
Rhonda Danos, had solicited Amato, Creely and Levenson to help pay for
his son's expenses when Judge Porteous was a State judge.
---------------------------------------------------------------------------
Judge Porteous's statement denying that he had ever been to
either one of their houses suggests a relationship that is
totally at odds with the truth of their respective
associations. He trivialized Mole's motion by comparing it to
the following: ``But does that mean that any time a person I
perceive to be friends who I have dinner with or whatever that
I must disqualify myself? I don't think that's what the rule
suggests. . . .'' And, by suggesting merely that he had
``dinner with'' or ``gone along to lunch with'' the two men,
with no elaboration, he affirmatively concealed what was really
the truth: that Amato and Levenson had paid for hundreds of his
lunches and dinners at expensive restaurants for a decade or
longer. Judge Porteous affirmatively attempted to divert the
hearing from the true issues raised in the recusal motion by
spending considerable attention on the issue of whether the
attorneys had given him campaign contributions--denying that
fact--and criticizing Lifemark's attorney for raising the
issue.\203\
---------------------------------------------------------------------------
\203\Recusal Hearing Transcript at 8-10 (Ex. 56).
---------------------------------------------------------------------------
Finally, Judge Porteous made several ``lulling''
statements--stressing his awareness of and sensitivity to his
ethical concerns associated with recusal issues, and suggesting
his comfort with the issue having been raised. The most
significant instance of this conduct was Judge Porteous's
statement:
I have always taken the position that if there was ever
any question in my mind that this Court should recuse
itself that I would notify counsel and give them the
opportunity if they wanted to ask me to get off.\204\
---------------------------------------------------------------------------
\204\Recusal Hearing Transcript at 18 (Ex. 56).
This self-serving statement purported to demonstrate the
Judge's sensitivity to his ethical responsibilities and thus
bolstered the factual and legal record for appellate review.
4. March 1997--Lifemark Hires Gardner
Lifemark, having lost the recusal motion, felt that it was
necessary to ``level the playing field,'' and thus hired Don
Gardner to be part of its trial team.\205\ Lifemark's pleading
to the court entering the appearance of Gardner was date-
stamped March 11, 1997.\206\ As Mole described:
---------------------------------------------------------------------------
\205\Mole 5th Cir. Hrg. at 174 (Ex. 65); Mole GJ at 18 (Ex. 64).
\206\Ex Parte Motion of Lifemark to Enroll Additional Counsel of
Record (Don Gardner), Lifemark Hospitals of La., Inc., v. Liljeberg
Enterprises, Inc., Civ. Action No. 93-1794 (E.D. La., Mar. 11, 1997)
(Ex. 60(a)).
---------------------------------------------------------------------------
Q. LWhy was Gardner then brought in by Lifemark?
A. LAfter we lost the motion to recuse, my client and I
discussed that--and my client insisted that we try to
find a lawyer who, like Mr. Amato and Mr. Levenson, was
a friend with the judge and knew him very well. They
were concerned that they would do everything they can
to achieve a level playing field. I resisted doing
that. I am not happy with the fact that we did it. But
my client insisted, and so we did it.\207\
---------------------------------------------------------------------------
\207\Mole TF Hrg. I at 143; Mole 5th Cir. Hrg. at 174-75 (Ex. 65).
Even Gardner recognized: ``[T]hey [Lifemark] wanted to have a
friendly face.''\208\ Lifemark's contract with Gardner provided
that Gardner would be paid based on the results of the case,
that he would be guaranteed $100,000 simply for entering his
appearance, and that he would receive another $100,000 if Judge
Porteous withdrew or if the case settled.\209\ As Mole bluntly
testified at the Fifth Circuit Hearing:
---------------------------------------------------------------------------
\208\Gardner 5th Cir. Hrg. at 462 (Ex. 32).
\209\Mole 5th Cir. Hrg. at 177-80 (Ex. 65); Mole GJ at 21-22 (Ex.
64).
Q. LSo is it fair to say this term [the $100,000
guaranteed payment] also shows that the purpose that
Don Gardner came in the litigation was because of his
---------------------------------------------------------------------------
relationship with Judge Porteous?
A. LYeah. Embarrassing but true.\210\
---------------------------------------------------------------------------
\210\Mole GJ at 28 (Ex. 64).
5. June and July 1997--Trial
Judge Porteous conducted a bench trial in the Liljeberg
case in June and July 1997.\211\ Amato handled a substantial
portion of the trial for the Liljebergs.\212\
---------------------------------------------------------------------------
\211\The Court's ``PACER'' Docket Report reveals that the trial
took place from June 16, 1997 through June 27, 1997, then started again
on July 14, 1997 and concluded July 23, 1997. (Ex. 50).
\212\Amato GJ at 48 (Ex.18).
---------------------------------------------------------------------------
One incident during the trial is noteworthy. Judge Porteous
played an active role in examining some of Lifemark's
witnesses, and at one point in the proceedings near the end of
the day, Lifemark's attorney, Mole, sought permission to ask
additional questions of the witness after Judge Porteous's
examination. Judge Porteous lost his temper at Mole, and though
the descriptions of the event vary, Judge Porteous ended up
knocking or throwing some of the evidence binders that were in
front of him in the direction of Mole. When the parties
returned to court the following trial day, which was after an
intervening weekend, Judge Porteous stated for the record his
position, and then permitted Mole to ask additional
questions.\213\
---------------------------------------------------------------------------
\213\Mole TF Hrg. I at 144; Levenson Dep. at 41-42 (Ex. 30);
Transcript(s) of Proceedings (Excerpts), Lifemark Hospitals of La.,
Inc., v. Liljeberg Enterprises, Inc., Civ. No. 93-CIV-1794 (E.D. La.)
(Excerpts of Non-Jury Trial, July 17, 1997 and July 21, 1997) (Ex. 61).
---------------------------------------------------------------------------
At the conclusion of the trial in July 1997, Judge Porteous
took the case under advisement. He did not issue his opinion
until April 26, 2000, nearly 3 years after trial.
H. Judge Porteous's Declining Financial Circumstances--1996 Through
2000
Judge Porteous's financial circumstances in the years
preceding his filing for bankruptcy in 2001 are discussed in
the next section. However, in order to understand Judge
Porteous's behavior in accepting and soliciting things of value
from attorneys during the pendency of the Liljeberg case (and
to appreciate his dependency on attorneys and others to support
his lifestyle), it is useful to note the decline of Judge
Porteous's financial situation during the period 1996-2000.
At the end of 1996, a few months after the October 1996
recusal hearing, Judge Porteous had credit card debt of
approximately $45,000, and a balance in his individual
retirement account (IRA) of $59,000. Over the next 4 years, he
gradually drew down his IRA account, frequently to pay off his
credit cards. By April 2000, he had credit card debt of
$153,000, and an IRA balance of $12,000.
By the time he rendered his decision in the Liljeberg case
in April 2000, Judge Porteous was just weeks away from
consulting with a bankruptcy attorney.\214\
---------------------------------------------------------------------------
\214\As described in the Bankruptcy Section of this Report, Judge
Porteous's debts were largely a result of gambling.
---------------------------------------------------------------------------
I. Judge Porteous's Relationships with Amato, Levenson, and Gardner
While He Had the Liljeberg Case under Advisement (July 1997-April 2000)
During the period from July 1997 through the issuance of
his verdict for the Liljebergs in April 2000, with millions of
dollars for the parties and substantial fees for the attorneys
at stake, Judge Porteous continued to seek and accept things of
value from Amato, Creely, Levenson and, to a lesser extent,
Gardner.
1. Meals
Amato continued to take Judge Porteous to lunches after the
Liljeberg trial and prior to Porteous's ruling in that case. As
Amato testified in his Task Force appearance:
Q. LAfter the trial, did you continue to take Judge
Porteous to lunch on a regular basis?
A. LJudge Porteous and I have been eating lunch
together for--since we have known each other, yes.
Q. LOkay. And some of them . . . involved you eating
well at Ruth's Chris Steak House, the Beef Connection,
Andrea's, Emeril's, and so forth, correct?
A. LYes, we had a nice--we had a good time.
* * *
Q. LSo I am talking about roughly summer of 1997 to
April 2000, and that is the period that you have just
testified that, as part of your whole life, you took
him to restaurants that we have just mentioned,
correct?
A. LRight.\215\
---------------------------------------------------------------------------
\215\Amato TF Hrg. I at 103-04. See also Amato Dep. at 17-18 (Ex.
24) (paying for Judge Porteous's meals at restaurants such as Beef
Connection, Ruth's Chris Steak House, and Dickie Brennan's while
Liljeberg case was pending).
The Department subpoenaed Amato's calendar and
corresponding credit card records reflecting meals he bought
for Judge Porteous starting in 1999. From 1999 to April 2000
(during which the Liljeberg case was pending), the following
chart reflects some of the meals attended by Judge Porteous and
paid for by Amato.\216\
---------------------------------------------------------------------------
\216\Exs. 21(b)-(c). By virtue of the limited records, the chart
does not include all instances where there is a calendar entry
mentioning Judge Porteous but no corresponding credit card charge, and
also does not include meals for which there is no entry on Amato's
calendar.
Gardner also testified that he took Judge Porteous to meals
while the Liljeberg case was pending. Specifically, Gardner
testified he took Judge Porteous to the following restaurants
when Judge Porteous was a Federal judge: Ruth's Chris Steak
House (``more than six [times].''\217\); Mr. B's (``four or
five times a year''\218\); Emeril's (``on occasions''\219\);
Brennan's/Dickie Brennan's (``I've been to Dickie Brennan's I
guess with Tom Porteous three or four times during that period
of time''\220\); NOLA's (``[t]hree or four times''\221\), and
Metro Bistro (``a little more frequent [than NOLA's]''\222\).
For each of these restaurants, there are charges on Gardner's
American Express account from approximately 1994 through 2000,
including charges during the roughly 3 year period spanning
Gardner's appearance as an attorney in the Liljeberg case
(early 1997) to the issuance of Judge Porteous's decision
(April 2000).
---------------------------------------------------------------------------
\217\Gardner Dep. at 16 (Ex. 36).
\218\Gardner Dep. at 15-16 (Ex. 36).
\219\Gardner Dep. at 16 (Ex. 36).
\220\Gardner Dep. at 16-17 (Ex. 36).
\221\Gardner Dep. at 17 (Ex. 36).
\222\Gardner Dep. at 17 (Ex. 36).
---------------------------------------------------------------------------
Though Gardner could not identify specific meals during
this time frame as being ones where he paid for Judge Porteous,
the charges on Gardner's American Express card identify the
likely meals, and provide a sense of what the meals would have
cost. For example, Gardner testified he took Judge Porteous to
NOLA's, Dickie Brennan's or Brennan's ``three or four times.''
Charges on Gardner's credit card between 1997 and 1999 (when
Liljeberg was pending and when Gardner represented Lifemark) at
those restaurants were as shown in the following chart:
From August 1994 through February 2000, Gardner had over 30
charges at Ruth's Chris Steak House, 16 charges at Emeril's,
over 30 charges at Mr. B's, and 23 at the Metro Bistro--
consistent with his testimony as to other places he frequently
took Judge Porteous.
2. May 1999--Creely Helps Pay for Bachelor Party Trip to Las Vegas
In connection with his son Timothy's bachelor party, Judge
Porteous went on a trip from May 20-23, 1999 (while Liljeberg
was pending) with several of his friends, including Creely and
Gardner, to Las Vegas, Nevada. Creely paid for Judge Porteous's
room and for a portion of Timothy's bachelor party dinner
during that trip.\223\
---------------------------------------------------------------------------
\223\Creely GJ at 39-40 (Ex. 11).
---------------------------------------------------------------------------
As to Judge Porteous's room, Caesars Palace records reflect
that Judge Porteous's room was charged to Creely's credit card
number.\224\ Judge Porteous also seemed to recall that Creely
paid for his room.\225\
---------------------------------------------------------------------------
\224\Caesars Palace Record (Ex. 377); Creely American Express
Record for May 1999 (Ex. 378).
\225\Porteous 5th Cir. Hrg. at 140 (Ex. 10).
---------------------------------------------------------------------------
As to the bachelor party meal at a steakhouse, Creely
testified:
[A]nd in these charges [on my credit card], all right,
is a meal for the bachelor party meal, OK, that we went
out on, and the way all that--$560.48. And the way I
recall what happened, there's no way that all these
people could eat for $500 at a steak house, drinking
and eating. The way I recall, is that there were a
number of people that, after the meal and the bill came
out, that put up the credit card to pay for the meal. .
. . There were a number of credit cards put up to have
the tip and the bill divided among everybody.\226\
---------------------------------------------------------------------------
\226\Creely GJ at 40 (Ex. 11).
Creely recalled that Judge Porteous did not share the cost of
this meal.\227\ Creely's American Express records also revealed
a charge of $560.48 at the steakhouse.\228\
---------------------------------------------------------------------------
\227\Creely GJ at 41 (Ex. 11).
\228\Creely American Express Record for May 1999 (Ex. 378).
---------------------------------------------------------------------------
Gardner also went to Las Vegas on the bachelor party
trip.\229\ Gardner denied paying anything for Judge Porteous on
that trip.\230\
---------------------------------------------------------------------------
\229\Porteous 5th Cir. Hrg. at 194 (Ex. 10); Gardner 5th Cir. Hrg.
at 465 (Ex. 33).
\230\Gardner 5th Cir. Hrg. at 465-66 (Ex. 32).
---------------------------------------------------------------------------
3. June 1999--Judge Porteous Solicits and Accepts Money from Amato
On June 28, 1999--after his son's wedding and prior to
issuing his decision in Liljeberg--Judge Porteous solicited
money from Amato. This request was made while the two men were
on a fishing trip. Amato identified the date of the fishing
trip--June 28, 1999--by reference to an entry on his
calendar.\231\ At the Task Force Hearing, Amato recalled the
amount requested by Judge Porteous as being $2,500.\232\ Amato
described the incident as follows:
---------------------------------------------------------------------------
\231\Amato Dep. at 11-13 (Ex. 24); Amato Dep. Ex. 83 (Ex. 283).
\232\Amato Dep. at 13 (Ex. 24).
It was a weekday, and a friend of mine has a fairly
large boat, and we were going to Caminada Pass, which
is the pass at Grand Isle, and at certain times of the
year, the fish run between the Gulf of Mexico and the
marsh. And the fish just at night, they bubble up. They
come to the surface, and it is a free-for-all. So we
went fishing that night. Judge Porteous was drinking.
We were standing on the front of the boat, the two of
us, and he was--I don't know how to put it. He was
really upset. He was--had a few drinks. He said, ``My
son's wedding was more than I anticipated. The girl's
family can't afford it. I invited too many guests.''
Would I lend him, give him, provide him, however you
want to call it, something, like $2,500, to pay for
part of the wedding or the after-rehearsal party or
something?\233\
---------------------------------------------------------------------------
\233\Amato TF Hrg. I at 104-05. See also Amato GJ at 19-20 (Ex. 18)
(``The only time Judge Porteous ever asked me for money was when his
first son got married. I went fishing, an overnight fishing trip, and
him and I were standing on the bow of the boat and he told me that his
son's wedding cost more than the bride's family anticipated because he
invited too many guests and could I lend him some money.'').
Notwithstanding Amato's use of the term ``lend'' in describing
Judge Porteous's request of him, Amato was clear: ``I didn't
believe I was gonna be paid back.''\234\ Amato testified he
gave Judge Porteous cash.\235\ Amato described this incident
consistently at the Fifth Circuit Hearing,\236\ and further
testified that he recalled providing the cash to Judge Porteous
in a bank envelope.\237\
---------------------------------------------------------------------------
\234\Amato GJ at 21 (Ex. 18).
\235\Amato GJ at 20-24 (Ex. 18).
\236\Amato 5th Cir. Hrg. at 240 (Ex. 20).
\237\Amato GJ at 64 (Ex. 18).
---------------------------------------------------------------------------
Creely recalled and corroborated critical aspects of that
incident as well. Specifically, Creely was asked whether Judge
Porteous requested money when he was a Federal judge:
[I] know one occasion that I remember. And it was an
occasion and it was May 1999. I have it written on my
calendar. And it has at the bottom of the page
``Fishing Mitch Martin.'' And Mitch Martin is a friend
of ours that had a boat. . . . I didn't go on this
trip.
[B]ut after this trip that--this one trip--I do recall
my law partner [Amato] went fishing with him--I didn't
go on this fishing trip--he [Amato] came back and said,
``The judge was crying about not being able to pay for
a wedding of some sort for his daughter. I don't know
what it was. But I think it had something to do with a
wedding or something. And he said, [``]He's crying.''
And he said, ``What do I do[?''] I said, ``I don't know
what to tell you to do. It ain't even me.'' And I
believe he gave him the money and I gave my law partner
back half of the money or--I don't know how that
happened. But I do know he asked for that money and it
was given to him.\238\
---------------------------------------------------------------------------
\238\Creely GJ at 59-60 (Ex. 11). Notwithstanding minor
discrepancies (the fishing trip was June 1999, not May; the wedding was
for Judge Porteous's son, not daughter), Creely's testimony was
consistent with Amato's.
Creely recalled ``that I gave my law partner a thousand
dollars, which means he gave him [Judge Porteous]
$2,000,''\239\ and that Judge Porteous's secretary, Rhonda
Danos, picked up an envelope with the cash.\240\ Creely also
testified he told Judge Porteous it was not appropriate for him
to be sending his secretary to pick up the money.\241\
---------------------------------------------------------------------------
\239\Creely GJ at 61 (Ex. 11). At the Fifth Circuit Hearing, Creely
testified that he recalled the request being a tuition expense, but
confirmed that he recalled the amount as $2,000. Creely 5th Cir. Hrg.
at 212-14 (Ex. 12).
\240\Creely 5th Cir. Hrg. at 214 (Ex. 12).
\241\Creely 5th Cir. Hrg. at 215 (Ex. 12). Amato was asked whether
he recalled an incident where Judge Porteous's secretary picked up the
money. He replied ``I don't recall that, but I don't say that it didn't
happen. You know, it well may have happened.'' Amato 5th Cir. Hrg. at
241 (Ex. 20).
---------------------------------------------------------------------------
Danos recalled picking up envelopes of money or having envelopes
delivered from Creely and Amato. In response to questions from the
attorneys, she identified that as having occurred in the May-June 1999
time frame. Danos 5th Cir. Hrg. at 421-22 (Ex. 43).
Judge Porteous, testifying in the Fifth Circuit hearing,
denied recollection of the specific circumstances in which he
made a request to Amato, but did not deny that the conversation
occurred. He admitted that he actually received money from
Amato for the purposes Amato described, and that the money was
received in an envelope.
Q. LDo you recall in 1999, in the summer, May, June,
receiving $2,000 for [sic: should be ``from''] them?
A. LI've read Mr. Amato's grand jury testimony. It says
we were fishing and I made some representation that I
was having difficulties and that he loaned me some
money or gave me some money.
Q. LYou don't--you're not denying it; you just don't
remember it?
A. LI just don't have any recollection of it, but that
would have fallen in the category of a loan from a
friend. That's all.\242\
---------------------------------------------------------------------------
\242\Porteous 5th Cir. Hrg. at 121 (Ex. 10).
---------------------------------------------------------------------------
* * *
Q. L[W]hether or not you recall asking Mr. Amato for
money during this fishing trip, do you recall getting
an envelope with $2,000 shortly thereafter?
A. LYeah. Something seems to suggest that there may
have been an envelope. I don't remember the size of an
envelope, how I got the envelope, or anything about it.
* * *
Q. LWait a second. Is it the nature of the envelope
you're disputing?
A. LNo. Money was received in [an] envelope.
Q. LAnd had cash in it?
A. LYes, sir.
Q. LAnd it was from Creely and/or----
A. LAmato.
Q. LAmato?
A. LYes.
Q. LAnd it was used to pay for your son's wedding.
A. LTo help defray the cost, yeah.
Q. LAnd was used----
A. LThey loaned--my impression was it was a loan.
Q. LAnd would you dispute that the amount was $2,000?
A. LI don't have any basis to dispute it.\243\
---------------------------------------------------------------------------
\243\Porteous 5th Cir. Hrg. at 136-37 (Ex. 10).
4. Payments for ``Externship'' for Judge Porteous's Son
At some point in time--and the best evidence suggests that
it occurred during the pendency of the Liljeberg case--Judge
Porteous and his secretary, Rhonda Danos, solicited the four
attorneys to contribute to an ``externship'' for Judge
Porteous's son. As Danos testified: ``I pretty much knew who to
call,'' identifying Levenson, Creely, and Amato among
others.\244\ She testified that all the attorneys contributed,
and indicated that as a general matter they gave $500.\245\
---------------------------------------------------------------------------
\244\Danos Dep. I at 21-22 (Ex. 46). Rhonda Danos was deposed
twice, first on Aug. 25, 2009, referenced as ``Danos Dep. I (Ex. 46),''
and on December 3, 2009, referenced as ``Danos Dep. II (Ex. 47).''
\245\Danos Dep. I at 22 (Ex. 46).
---------------------------------------------------------------------------
Amato recalled that ``I just remember that some sort of way
that . . . Timmy or Tommy needed money to go to Washington, and
they were passing the hat.''\246\ He testified he contributed a
few hundred dollars.\247\
---------------------------------------------------------------------------
\246\Amato Dep at 21-22 (Ex. 24).
\247\Amato TF Hrg. I at 104 (``I recall that . . . one of his
children were coming to Washington to extern, I think, for Senator
Breaux, and they were looking for contributions to defray the cost.'').
---------------------------------------------------------------------------
Levenson testified that Danos solicited him for funds for
Judge Porteous's son: ``[I] recall Rhonda [Danos] saying that
they were trying to have some friends help him with--I don't
know if it was travel expenses or living expenses of something
so that he could go to Washington'' and that Levenson gave
Rhonda ``a couple hundred dollars.''\248\
---------------------------------------------------------------------------
\248\Levenson GJ at 64-65, 66 (Ex. 25).
---------------------------------------------------------------------------
Gardner recalled being asked by Judge Porteous himself. He
testified: ``[T]o the best of my recollection . . . he [Judge
Porteous] says that Tommy or one of his sons, and I think it's
Tommy, had the opportunity to extern and whatever. It was a
golden opportunity, but that there were some expenses resulting
as a result of it. And I think at that point in time I may have
volunteered to give him $200 to do that. . . . I don't know if
I gave it to Tommy or gave it to his secretary or
whatever.''\249\ Gardner placed the externship as occurring
sometime in 1998, 1999 or 2000, that is, while the Liljeberg
case was pending.\250\
---------------------------------------------------------------------------
\249\Gardner GJ at 74 (Ex. 33); Gardner 5th Cir. Hrg. at 468 (Ex.
32); Gardner Dep. at 26-27 (Ex. 36).
\250\Gardner 5th Cir. Hrg. at 471 (Ex. 32); Gardner Dep. at 26 (Ex.
33). The dates of the payments, and the son (or sons) for whom the
payments were made, is not entirely clear from the record, though
Amato, Gardner and Danos all recall these requests being made.
---------------------------------------------------------------------------
Danos generally recalled there were two externships. She was ``pretty
sure one of them was when [Judge Porteous] was, was [a] State [judge].
The other may have been when we were in Federal court.'' Danos Dep. I
at 21 (Ex. 46). However, whether these requests and payments were made
prior to the Liljeberg proceeding or while the decision was pending
(or, as appears likely, whether there were two externships, one in each
time-frame), it was never disclosed to Lifemark that Judge Porteous
(through Danos) had ever requested, and that Amato and Levenson had
paid, monies to help support Judge Porteous's son or sons.
5. Five Year Anniversary Party--Fall 1999
Amato and Creely also paid for a party for Judge Porteous
to celebrate his fifth year on the Federal bench, at the French
Quarter Restaurant and Bar, to which his former clerks and
other attorneys were invited.\251\ This would have been in late
1999, during the pendency of the Liljeberg case.\252\ Danos and
Judge Porteous's courtroom deputy clerk, Ricky Windhorst,
recalled this party as well.\253\ Amato estimated the amount of
the party as approximately $1,500.\254\
---------------------------------------------------------------------------
\251\Amato TF Hrg. I at 105.
\252\The date is not noted on Amato's calendar.
\253\Danos Dep. I at 35-37 (Ex. 46).
\254\Amato Dep. at 14-15 (Ex. 24). In his deposition he estimated
$1,500. At the Task Force Hearing Amato estimated $1,700. TF Hrg. I at
119.
---------------------------------------------------------------------------
6. Continued Association and Travel with Levenson while Liljeberg was
Pending
During the 1996-2000 time frame, Judge Porteous maintained
a close relationship with Levenson, characterized by the two
men traveling together on several occasions. On some of those
occasions, Levenson purchased meals and drinks for Judge
Porteous.
Meals and Drinks at the Jefferson Bar Association Events in
Biloxi, Mississippi. Levenson has stated he paid for meals and
drinks for Judge Porteous and others at the annual Jefferson
Bar Association events held in April of the various years,
though he does not recall specific meals. His credit card
records reflect a charge of $197.24 for food at the ``Isle of
Capri'' restaurant in Biloxi on April 15, 1999, and a charge
for $405.38 at that same restaurant on April 14, 2000. It is
likely he paid for Judge Porteous at one or both of these
meals.\255\
---------------------------------------------------------------------------
\255\Levenson Expense Records (Ex. 26). The ``Isle of Capri'' was
the hotel where the restaurant was located. Levenson has stated that if
Judge Porteous was present, it is likely that he (Levenson) would have
taken Judge Porteous (among others) to that restaurant, and though he
did not have a specific memory of each dinner, he had taken Judge
Porteous to dinner at the Isle of Capri restaurant on at least one
occasion. Levenson Dep. II at 9 (Ex. 31). Judge Porteous's credit card
records reflect that he was in fact in Biloxi, Mississippi, at these
Bar events in both 1999 and 2000. Though Judge Porteous's attendance at
the 2000 dinner is not certain, that dinner would have been just a few
weeks prior to Judge Porteous issuing his opinion in the Liljeberg
case.
---------------------------------------------------------------------------
Hunting Trips at Attorney Allen Usry's Mississippi Property
1996-1998. From 1996 through 1998, there were one or two
hunting trips that included Levenson, Judge Porteous, and other
associates of Judge Porteous (including a neighbor and a now-
deceased bankruptcy judge). Allen Usry, an attorney who on
occasion worked with Levenson, recalled that Levenson and Judge
Porteous came to his property to hunt on two occasions during
the period after fall of 1996 (that is, after Levenson entered
his appearance in the Liljeberg case) through 1998. Usry
recalled that ``probably both [hunting trips] . . . [b]ut at
least one for sure'' occurred in this period.\256\ Levenson
recalled one such trip.\257\
---------------------------------------------------------------------------
\256\Usry Dep. at 20 (Ex. 163).
\257\Levenson Dep. at 8-10 (Ex. 30).
---------------------------------------------------------------------------
Trip to Washington D.C. for Mardi Gras--February 1999. In
1999, Judge Porteous's daughter was made a ``Princess'' in
connection with an event generally referred to as Mardi Gras in
Washington D.C. This event consisted of meals, drinking, and
other entertainment. Levenson traveled to Washington D.C. with
Judge Porteous for this event. It appears that Judge Porteous
paid his own airfare and hotel charges. Levenson stated he
would not have paid for meals, because the meals were provided
at that event, ``[b]ut I'm sure we probably had a round of
drinks, several of us at the bar, that I would have paid
for.''\258\
---------------------------------------------------------------------------
\258\Levenson Dep. at 23 (Ex. 30).
---------------------------------------------------------------------------
Trip to Houston for the Fifth Circuit Judicial Conference--
April 1999. In April 1999, Levenson went to Houston as Judge
Porteous's invitee for the Fifth Circuit Judicial
Conference.\259\ Levenson paid for meals and drinks for Judge
Porteous, including a meal at a restaurant called ``Americas''
(for which there is a charge of $574.71 on his credit card) and
other food or drinks at ``Delmonico's'' restaurant (for which
there are charges amounting to over $200 on Levenson's credit
card).\260\
---------------------------------------------------------------------------
\259\Levenson Expense Records (Ex. 26).
\260\Levenson Dep. II at 11-12 (Ex. 31). Levenson's Hotel Bill
reflecting charges at ``Delmonico's,'' and his credit card statement
reflecting a dinner at ``Americas'' are marked as part of Levenson Dep.
II Ex. 91 (Ex. 291) (LEV 048, 043).
---------------------------------------------------------------------------
Las Vegas--October 1999. In October 1999, Levenson was in
Las Vegas at the same time as Judge Porteous. ``I don't recall
traveling with him. I do remember going to a national bull
riding championship with him out there.''\261\ Levenson
recalled paying for a dinner with Judge Porteous, and confirmed
that the ``Aqua'' restaurant charge of $256 reflected in his
hotel records corresponds to that meal.\262\
---------------------------------------------------------------------------
\261\Levenson Dep. at 19 (Ex. 30). Caesar's Palace records reveal
that Judge Porteous was there from October 27-29, 1999. (Ex. 299).
\262\Levenson Dep. II at 11-12 (Ex. 31). Levenson's Hotel Bill
reflecting charges totaling more than $300 at ``Aqua'' is marked as
part of Levenson Dep. II Ex. 91 (Ex. 291) (LEV 034).
---------------------------------------------------------------------------
Hunting trip at the Blackhawk Hunting Facility--December
1999. Usry was offended by the behavior of Judge Porteous and
his friends during prior hunting trips at his property--
stemming from their drinking--and falsely told Judge Porteous
he had sold his Mississippi property so he would not have to
invite Judge Porteous back. In December 1999, Levenson and Usry
planned to go with Judge Porteous and another friend of Usry's
to the ``Blackhawk'' hunting facility in Louisiana. Usry
recalled that he was going to pay for his friend and that
Levenson would pay for Judge Porteous. Usry's calendar
reflected that this trip was planned for December 7-10,
1999.\263\
---------------------------------------------------------------------------
\263\Usry Dep at 14 (Ex. 163); Usry Dep. Ex. 86 (Ex. 286).
---------------------------------------------------------------------------
A few days prior to the trip, Usry's friend had a health
emergency that made it impossible for him to go on the trip, so
Usry cancelled as well, leaving Levenson and Judge Porteous to
go alone.\264\ Levenson testified that either he, Usry, or some
combination of the two of them ended up paying for Judge
Porteous.
---------------------------------------------------------------------------
\264\Levenson Dep. at 10-13 (Ex. 30). Levenson confirmed that he
went on this trip with Judge Porteous. Efforts have been made to
establish whether Levenson paid for Judge Porteous and, if so, what
amount. Judge Porteous's records do not reflect that he paid for the
Blackhawk trip; but he had only a few months before asked Amato for
money, and the evidence demonstrated that he hardly ever paid for his
own hunting. The Levenson financial records that were obtained during
the Department's investigation do not include his 1999 American Express
records. Blackhawk no longer possessed the pertinent 1999 records.
Q. LWhat do you recall about the payment for yourself
---------------------------------------------------------------------------
and Judge Porteous at this lodge?
A. LI know I was supposed to make a payment. I don't
recall whether or not I made any payment, and I was
unable to find any records where I had made any
payments, but I was certainly supposed to pay for
myself and a portion of some of the other [persons]
which would have included Judge Porteous.\265\
---------------------------------------------------------------------------
\265\Levenson Dep. II at 5 (Ex. 31).
Trip to Houston for the Fifth Circuit Judicial Conference--
May 2000. In May 2000, less than 2 weeks after the Liljeberg
case was decided, Levenson went to San Antonio, Texas, to
accompany Judge Porteous to the annual Fifth Circuit Judicial
Conference.\266\ Levenson confirmed he paid for two dinners for
Judge Porteous, and his credit card reflects charges of $322.16
at the ``Little Rhein Steakhouse'' (on May 7, 2000), and
$201.33 at ``L'Etoile'' for food (on May 9, 2000).\267\
---------------------------------------------------------------------------
\266\Levenson Expense Records (Ex. 26). The records were obtained
subsequent to Levenson's deposition, and he was not questioned about
these charges.
\267\Levenson Dep. II at 16-17 (Ex. 31). Levenson's credit card
statement reflecting these payments are marked as part of Levenson Dep.
II Ex. 91, at 16-17 (Ex. 291).
---------------------------------------------------------------------------
7. Conversations with Amato while the Liljeberg Case was Pending
Amato testified that Porteous made occasional comments to
him acknowledging that he [Judge Porteous] knew that Amato was
waiting for the opinion to be issued. Amato interpreted Judge
Porteous's comments as being favorable, and testified that he
believed that Judge Porteous was going to rule for him.\268\
---------------------------------------------------------------------------
\268\Amato Dep. at 18-20 (Ex. 24).
---------------------------------------------------------------------------
8. These Items of Value were not Disclosed to Lifemark
Notwithstanding Judge Porteous's statement at the recusal
hearing that: ``I have always taken the position that if there
was ever any question in my mind that this Court should recuse
itself that I would notify counsel and give them the
opportunity if they wanted to ask me to get off. . . .'' he did
not notify Mole of any of his post-recusal hearing (and post-
trial) contacts with Amato, Creely, or Levenson in order to
give Mole the opportunity to move to recuse.
Mole testified he was unaware that Judge Porteous requested
money from Amato, and that Amato gave him money:
Q. LWere you aware of any cash changing hands in `99
during the pendency of this suit?
A. LNo. I would have been very alarmed to find out that
Jake was giving money to the judge during the case as
being under submission for decision by Judge
Porteous.\269\
---------------------------------------------------------------------------
\269\Mole 5th Cir. Hrg. at 193 (Ex. 65).
Mole similarly denied knowing or being informed ``that Mr.
Amato and Mr. Levenson took Judge Porteous out to lunch on a
number of occasions;'' that ``Mr. Amato and Mr. Levenson
contributed money to Judge Porteous to help pay for some type
of intern or externship for one of Judge Porteous's sons;''
``that Amato had paid about $1,500 for a party to celebrate
Judge Porteous's fifth year on the bench;'' and that ``with
regard to Mr. Levenson, . . . that he had, in fact, traveled to
Washington with Judge Porteous at the end of January 1999, that
he traveled to Houston with Judge Porteous in April 1999, that
he was in Las Vegas with Judge Porteous in October 1999, and
that Levenson and Judge Porteous went on hunting trips
together, including a hunting trip to a hunting lodge in
December 1999.'' As Mole testified: ``All of those things were
the things I--sort of things I feared were happening or would
happen, but had--I had no knowledge of.''\270\
---------------------------------------------------------------------------
\270\Mole TF Hrg. I at 159.
---------------------------------------------------------------------------
At the Fifth Circuit Hearing, Judge Porteous cross-examined
Mole to elicit the fact that Gardner went on the Las Vegas
bachelor party trip as well.
Q. LAre you aware that, again, while this case was
under advisement, that your counsel Mr. Gardner
accompanied me and my family to Las Vegas for a
bachelor party?
A. LNo, I did not know that.
Q. LSo, he went--if I represent to you that he went, do
you find anything wrong with that?
A. LYou know, I find something wrong with the whole
system that allows that to happen, Judge Porteous. So,
yeah, I do.
Q. LOkay. But if he--should I have recused because I
went with Gardner?
A. LWell, I'm not the judge here but----
Q. LI'll withdraw that question.
A. LYeah, you should. I think you should.\271\
---------------------------------------------------------------------------
\271\Porteous 5th Cir. Hrg. at 194 (Ex. 10).
J. April 2000--Judge Porteous Rules for the Liljebergs; August 2002--
Case Reversed by the Fifth Circuit Court of Appeals
On April 26, 2000, Judge Porteous issued a written opinion
ruling for Amato's and Levenson's clients, the Liljebergs.
In ruling for the Liljebergs, Judge Porteous concluded that
Lifemark--a lender to the Liljebergs--had breached certain
duties it purportedly owed to the Liljebergs in connection with
a $44 million loan to construct a hospital. Lifemark's loan to
the Liljebergs was secured by hospital property owned by the
Liljebergs. In 1993, Lifemark had failed to take certain steps
to secure its debt--it was required to ``reinscribe'' its lien
in the appropriate land and title records for the lien to
remain in effect and had failed to do so. As a result, another
entity--Travelers--which had obtained an unrelated $7.8 million
judgment against the Liljebergs, was able to file a lien on the
property and place itself in the prime position ahead of
Lifemark, which had by its inaction lost its security interest.
Travelers, now in the prime position, executed its $7.8 million
judgment on the property, forcing its sale in 1994. The
property was sold for $26 million--approximately $7.8 million
of which went to Travelers, and $18 million to Lifemark (now
sitting in the second position).
The Liljebergs alleged (and Judge Porteous found) that
Lifemark's failure to ``reinscribe'' its lien breached a duty
Lifemark purportedly owed to the Liljebergs, and that because
of that breach, Travelers was able to move to the front of the
line (ahead of Lifemark) and foreclose on the Liljebergs'
property, in this way damaging the Liljebergs. Judge Porteous
made this finding despite the fact that Travelers could have
executed on the property even in second position behind
Lifemark, and even though the Liljebergs could have
``reinscribed'' the Lifemark lien themselves. In his April 2000
opinion, Judge Porteous ordered that the 1994 judicial sale be
``undone.''\272\ This was extraordinary relief that the
Liljebergs had not even requested.\273\
---------------------------------------------------------------------------
\272\On this point, Gardner testified he and Judge Porteous had the
following off the record conversation:
At the end of that day's testimony when that was resolved,
Mr. Levenson and myself went back to talk about the next
day, and Judge Porteous commented about the thing. He says,
``I'm really having some problems with Lifemark not
reinscribing their mortgage and allowing another creditor
to jump ahead of that.'' Because they allowed the
---------------------------------------------------------------------------
foreclosure in effect by not reinscribing their mortgage.
And I said to him, I said, ``Judge''--I may have said ``big
boy'' because I was friendly with him, but we were not in
court. And I said, ``I don't care who you are. No Federal
judge''--because I'm very familiar with State law in
foreclosures. I did a lot of them at [a prior law firm].
``You cannot overturn a State court foreclosure absent
fraud.'' And those people [the Liljebergs] put no evidence
whatsoever on about any fraud, because they [Lifemark] had
a right not to reinscribe their mortgage. They were
perfectly in their legal rights the way they went about it.
Gardner Dep. at 53-54 (Ex. 36).
---------------------------------------------------------------------------
\273\Mole TF Hrg. I at 160.
---------------------------------------------------------------------------
Lifemark appealed Judge Porteous's decision to the Fifth
Circuit. In August 2002, the Fifth Circuit Court of Appeals, in
striking language, rejected Judge Porteous's conclusions that
Lifemark's failure to preserve its own security interests gave
the Liljebergs grounds for complaint. The Fifth Circuit
characterized various aspects of Judge Porteous's ruling as
``inexplicable,'' ``a chimera,'' ``constructed entirely out of
whole cloth,'' ``nonsensical,'' and ``absurd'':
The extraordinary duty the district court imposed
upon Lifemark, who loaned the money to build the
hospital and held the mortgage on it to secure its
payment, is inexplicable. Whatever duty Lifemark may
have owed as the pledgee of the collateral mortgage
note, they do not include a requirement that Lifemark
reinscribe the mortgage executed in Lifemark's favor to
secure a debt owed by [the Liljebergs]\274\ to
Lifemark, in order that the mortgage may retain
priority for Lifemark's benefit as pledgee and
mortgagee. As Lifemark aptly points out, ordinarily a
debtor such as [the Liljebergs] is happy to have its
creditor fail to record its lien. We reject the
assertion that Lifemark as the mortgagee here owed a
duty to its mortgagor to reinscribe the mortgage, as
illustrated in part, indeed, by the very difficulty of
describing exactly how not protecting a mortgage[e]'s
first position, in and of itself, could possibly harm
the mortgagor.
---------------------------------------------------------------------------
\274\The Liljebergs owned and operated an entity called ``St.
Jude.'' Throughout this discussion, for simplicity's sake, ``St. Jude''
will be replaced by ``[the Liljebergs].''
---------------------------------------------------------------------------
* * *
Nor can this theory explain how it can lie beside the
undisputed right of Lifemark Hospitals, Inc. to, ``at
any time, without notice to anyone, release any part of
the Property from the effect of the Mortgage.'' . . .
The grant of a security interest to secure [the
Liljebergs'] debt was to protect the lender, Lifemark
Hospitals, Inc., not the borrower.
Nor did Lifemark as mortgagee have a duty to protect
the hospital owner from other creditors asserting their
rights against the hospital, as the district court held
Lifemark did. . . . This is a mere chimera, existing
nowhere in Louisiana law. It was apparently constructed
out of whole cloth.\275\
---------------------------------------------------------------------------
\275\In the Matter of: Liljeberg Enterprises, Inc., 304 F.3d 410,
428-29 (5th Cir. 2002) (Ex. 63).
Judge Porteous offered a second ground for undoing the
judicial sale, namely, that there was a conspiracy by Lifemark
to wrest control of the hospital from the Liljebergs. Evidence
of the conspiracy included the fact that Lifemark failed to
reinscribe its lien and thus permitted Travelers to initiate
foreclosure proceedings. This was also rejected by the Fifth
Circuit as ``border[ing] on the absurd'' and ``close to being
---------------------------------------------------------------------------
nonsensical'':
[T]he district court's findings of a ``conspiracy'' to
wrest control of the hospital and medical office
building from [the Liljebergs] and Liljeberg
Enterprises border on the absurd. . . .
The district court's ``conspiracy theory'' conclusion
is based, in part, on the view that Liljeberg
Enterprises's or [the Liljebergs'] losses were caused
by Lifemark. Specifically, not reinscribing the
collateral mortgage and not buying out the Travelers
lien and adding the Travelers debt to the debt owed by
[the Liljebergs] to Lifemark. . . . The district court
and Liljeberg Enterprises offer no statutory or case
law support for this proposition, for the simple reason
that this is not the law. [footnote omitted]
The theory that Lifemark proximately caused any loss
to Liljeberg Enterprises or [the Liljebergs] from the
Travelers foreclosure on its judicial mortgage cannot
accommodate the undisputed fact that, under Louisiana
law, [the Liljebergs] could have reinscribed the
collateral mortgage itself. [footnote omitted] . . .
That it could have and did not do so is telling. It
rends a large hole in the conspiracy claim and leaves
[the Liljebergs'] inaction unexplained. . . .
* * *
[T]he idea that Lifemark deliberately subordinated its
mortgage interest to Travelers, knowing it would result
in a required payment, to wit, approximately $7.8
million, to Travelers at any judicial sale, comes close
to being nonsensical. \276\
---------------------------------------------------------------------------
\276\Id. at 431-32 (footnote omitted) (Ex. 63).
After the case was reversed by the Fifth Circuit, the parties
settled.\277\
---------------------------------------------------------------------------
\277\Mole GJ at 41-42 (Ex. 64).
---------------------------------------------------------------------------
IX. THE FACTS UNDERLYING ARTICLE II--JUDGE PORTEOUS'S CORRUPT
RELATIONSHIPS WITH BAIL BONDSMAN LOUIS M. MARCOTTE, III, AND LORI
MARCOTTE
A. Introduction
In the early 1990's, while a State judge in the 24th
Judicial District Court (the ``24th JDC'') located in Gretna,
Louisiana, Judge Porteous formed a relationship with local bail
bondsman Louis M. Marcotte, III, and his sister, Lori Marcotte,
who operated a bail bonds company called Bail Bonds Unlimited
(BBU). That relationship was characterized by a course of
conduct whereby the Marcottes provided numerous things of value
to (then) State judge Porteous, and Judge Porteous in turn took
numerous steps in his official capacity to assist the Marcottes
in their bail bonds business. Judge Porteous was instrumental
to the Marcottes in their ability to expand their business in
the 24th JDC.
Ultimately, the Marcottes' conduct and their relationship
with State judges and other State law enforcement officials
came under investigation. In the late 1990's, after Judge
Porteous had become a Federal judge, the FBI, working with the
United States Attorney's Office for the Eastern District of
Louisiana, conducted the ``Wrinkled Robe'' investigation,
targeting public corruption in the setting of bonds in the 24th
JDC. This investigation included wiretaps and other covert
methods, and resulted in convictions of Louis Marcotte, Lori
Marcotte, another BBU employee (Norman Bowley), two State
judges (Ronald Bodenheimer and Alan Green) and several other
State law enforcement officials.
The role Judge Porteous played in the inception of the
corrupt scheme is discussed generally in the FBI's August 2001
affidavit in support of its request to obtain wiretaps. That
affidavit described how the Marcottes had provided Judge
Porteous (referred to as ``JUDGE #2'' in the Affidavit) with
meals and a trip to Las Vegas and that Judge Porteous had
expunged a conviction of a Marcotte employee. The Affidavit
cited specific instances where Judge Porteous set bonds at the
Marcottes' request in order to benefit the Marcottes
financially. The affidavit concluded that the ``pattern of
illegal activity has been occurring for at least the last 8
years [i.e., from 1993 to 2001] beginning with [Judge
Porteous].''\278\ However, as DOJ noted in its 2007 Complaint
Letter to the Fifth Circuit, the corrupt relationship between
Judge Porteous and the Marcottes that occurred while Judge
Porteous was a State judge, even if it were clearly of a
criminal nature, could not have been the subject of a criminal
prosecution as part of Wrinkled Robe, because it was barred by
the applicable statute of limitations.\279\
---------------------------------------------------------------------------
\278\Affidavit in Support of Application, In the Matter of the
Application of the United States of America for an Order Authorizing
the Interception of Wire Communications, Misc. No. 01-2607 (E.D. La.,
Aug. 27, 2001) (redacted) at 136 (Ex. 69(f)).
\279\The DOJ Complaint Letter stated: ``Although the investigation
developed evidence that might warrant charging Judge Porteous with
violations of criminal law relating to judicial corruption, many of
those incidents took place in the 1990's and would be precluded by the
relevant statutes of limitations.'' DOJ Complaint Letter at 1 (Ex. 4).
---------------------------------------------------------------------------
The FBI's perception of Judge Porteous's central role in
the corruption in the 24th JDC has been confirmed by the
Marcottes in their Task Force Hearing testimony and in their
respective depositions. Not only did Judge Porteous set bonds
at the Marcottes' request, but because Judge Porteous was an
influential judge on the 24th JDC, the Marcottes were able to
trade and build on their close relationship with him to form
corrupt relationships with other judges. Significantly, though
the Marcottes would give things of value to other judges and
law enforcement officials who helped them throughout the 1990's
and into the 2000's, several of whom were subsequently
convicted of Federal corruption offenses, they each perceived
Judge Porteous to be the single most significant judge in
assisting them in their business.
Louis Marcotte testified:
Q. LNow, of all the judges who have helped you, where
would you rank Judge Porteous?
A. LNumber one.
Q. LOkay. You didn't even hesitate in that response,
did you?
A. LNo.
Q. LAnd you're certain of that; is that right?
A. LYes.\280\
---------------------------------------------------------------------------
\280\Louis Marcotte Dep. at 24-25 (Ex. 68).
Lori Marcotte, Louis's sister, who ran the company with
---------------------------------------------------------------------------
Louis, testified similarly:
Q. LWho was the single most important judge [to] the
success of your company, in the 24th Judicial District
Court?
A. LTom Porteous.
Q. LIs there any question in your mind about that?
A. LNo.\281\
---------------------------------------------------------------------------
\281\Lori Marcotte Dep. at 66-67 (Ex. 76).
Even as a Federal judge, Judge Porteous took steps to help
the Marcottes maintain and expand their business. He lent his
status as Federal judge and reputation on their behalf,
notwithstanding his knowledge of their corrupt acts. In
particular, Judge Porteous vouched for the Marcottes with newly
elected State judges and other judicial officers, and helped
the Marcottes secure and cement relationships--including a
corrupt relationship with one judge in particular, former State
Judge Ronald Bodenheimer. Judge Porteous undertook these
efforts while accepting numerous expensive meals from the
Marcottes.
Two other incidents that reflect actions taken by Louis
Marcotte for the benefit of Judge Porteous are noteworthy.
First, in 1994, Louis Marcotte was interviewed by the FBI as
part of its background check of Judge Porteous in connection
with his nomination to be a Federal judge. Louis Marcotte was
not candid with the FBI as to his knowledge of Judge Porteous's
activities. Second, in 2003, when he was under criminal
investigation, Louis Marcotte prepared an affidavit that
generally attempted to exculpate Judge Porteous. As discussed
below, that affidavit was misleading, if not false.
B. Overview--the Impact of Louisiana State Judges on the Bail Bonds
Businesses
In the 24th JDC where Judge Porteous presided as a State
judge until October 1994, the practices of the State judges in
setting bonds had enormous financial impact on those in the
bail bonds business. If the bonds were set too high, persons
who were arrested would not be able to afford to pay the
premium (typically 10% of the bond)\282\ to the bondsman to
have the bond posted. If the bond was set too low--say,
personal recognizance--the bondsman would not make any money in
the form of premiums. As a general matter, a bondsman wanted
bonds to be set at profit-maximizing levels--that is, the
highest amount for which the individual who was arrested could
afford to pay the premium, but no higher than the person could
pay. As Lori Marcotte testified:
---------------------------------------------------------------------------
\282\The actual amount was 12.5%. Of that amount, 10% went to the
bondsman, and 2.5% went to the court. The 10% amount will be used for
this discussion.
Q. L[E]xplain what the consequences are if bond was set
---------------------------------------------------------------------------
too low or if the bond was too high.
A. LIt depends on how much money the person had to bail
out. If they had little money, then having a low bond
set would be advantageous to us. If they had plenty
money, then a higher bond would be set.
Q. L[W]hy isn't it in your best interest for the judge
to set a $100,000 bond or $1 million bond? Does that
mean you get $100,000 premium?
A. LNot if the people don't have the money. No, it
doesn't maximize profit to write a bond and not collect
all the money.\283\
---------------------------------------------------------------------------
\283\Lori Marcotte Dep. at 8 (Ex. 76).
In the 24th JDC, the practice was that the Marcottes (or
their employees or agents) would interview a prisoner upon
arrest, find out identifying information, the nature of the
crime, and the prisoner's record, locate relatives or persons
capable of posting bail, and ultimately determine how much the
prisoner could afford to pay in the form of a premium: ``We
would screen the family or the defendant to find out how much
money they had. At some point, we would run credit reports to
see if they had available credit on their credit cards.''\284\
The Marcottes would use that information in making a
recommendation to one of the judges in the courthouse as to the
amount of bond that the judge should set.
---------------------------------------------------------------------------
\284\Louis Marcotte TF Hrg. III at 42.
---------------------------------------------------------------------------
The procedures in the courthouse during the relevant time
period called for bond to be set by a sitting magistrate
assigned to that duty. However, any judge in the courthouse
could set bond, so if the bondsman thought that the magistrate
who would hear the case would set the bond too high or too low,
the bondsman would seek out a favored judge to set the bond at
the bondsman's recommended, profit-maximizing level. As Louis
Marcotte explained: ``[I]f the magistrate wasn''t favorable, we
would start calling the judges at home, you know, real early
before the magistrate got there. And then, if we couldn't get
in touch with them, we would go shopping in the courthouse
before the magistrate set the bond.''\285\
---------------------------------------------------------------------------
\285\Louis Marcotte TF Hrg. III at 43.
---------------------------------------------------------------------------
It is against this background and set of financial
incentives that Louis Marcotte and Lori Marcotte formed a
relationship with Judge Porteous.\286\
---------------------------------------------------------------------------
\286\Though financial records of Judge Porteous in the 1990-1994
time-period have not been obtained, the testimony of those who knew
him--including Creely, for example--make it clear that Judge Porteous
had financial difficulties meeting family obligations.
---------------------------------------------------------------------------
C. The Relationship Between the Marcottes and Judge Porteous Through
the Summer of 1994
The relationship between Judge Porteous and the Marcottes
involved a course of conduct, consisting of Judge Porteous
soliciting and accepting a steady stream of things of value
from the Marcottes, while, at the same time, Judge Porteous
took a series of official actions for their financial benefit.
These actions on both sides grew more extensive, and more
intertwined, from the inception of their relationship in or
about 1990 and 1991 to the time that Judge Porteous took the
Federal bench in late October 1994.
1. Judge Porteous's Solicitation and Acceptance of Things of Value from
the Marcottes
Meals. The Marcottes frequently took Judge Porteous to
lunch, along with his secretary Ms. Danos, as well as other
courthouse personnel or staff. The meals were expensive and
involved significant consumption of alcohol. Louis Marcotte
estimated they occurred ``around once a week and sometimes
twice a week'' and identified the restaurants as ``the Beef
Connection, Ruth's Chris [Steak House], a place named Romairs,
you know, restaurants near the courthouse.''\287\ Lori Marcotte
similarly described the frequency of the lunches as ``[a] few
times a month. Sometimes once or twice a week and then
sometimes once a month. So overall, I don't know, twice a month
in the whole history, but sometimes more.''\288\ On occasion
the lunches would go on for hours, to the point that Lori
Marcotte left her credit card number with the restaurant--
essentially providing Judge Porteous and others access to an
open bar and unlimited food.
---------------------------------------------------------------------------
\287\Louis Marcotte TF Hrg. III at 44. The various restaurants were
described as ``pretty close to the same cost'' as Ruth's Chris Steak
House. Id.
\288\Lori Marcotte Dep. at 18 (Ex. 76).
---------------------------------------------------------------------------
Several witnesses corroborated the Marcottes. When asked
which restaurants the Marcottes took her and Judge Porteous to,
Danos responded: ``Red Maple, Beef Connection, Emeril's. I'm
sure there's others. . . .''\289\ Attorney Bruce Netterville
was friends with Louis Marcotte,\290\ and was also an
occasional guest of the Marcottes when they were taking Judge
Porteous to lunch. Netterville identified ``Ruth's Chris
Steakhouse on Broad Street and the Red Maple which is on
Lafayette and, I think 10th, but Lafayette Street in Gretna''
as among the restaurants they went to, but had no doubt there
were others as well.\291\ Bodenheimer (who would subsequently
be elected judge) testified that when he was a prosecutor: ``I
was assigned to [Judge Porteous's] court. And when we broke for
lunch, he would--Louis and his, one or sometimes both of his
sisters, would be there to take him [Judge Porteous] to
lunch.''\292\
---------------------------------------------------------------------------
\289\Danos Dep. I at 25-26 (Ex. 46).
\290\Louis Marcotte was best man at Netterville's 1994 wedding.
\291\Netterville Dep. at 8 (Ex. 92(a)).
\292\Bodenheimer Dep. at 8 (Ex. 86).
---------------------------------------------------------------------------
Sometimes Louis would call Judge Porteous, sometimes Judge
Porteous would call Louis: ``It started out with me calling him
for lunch. And then, as we got closer and developed a
relationship, he would call and then I would call.''\293\
According to Louis, Judge Porteous never paid for a meal.\294\
---------------------------------------------------------------------------
\293\Louis Marcotte TF Hrg. III at 44.
\294\From Louis Marcotte TF Hrg. III at 45:
Q. [L]et's just say [you took him to lunch] three times a
month for 3 years, so 100 lunches. Of the 100 lunches that
you went to with Judge Porteous at the restaurants and at
the rates that you described, how many of those did Judge
---------------------------------------------------------------------------
Porteous pay for?
A. He didn't pay for any.
Corporate credit card records of Louis Marcotte and Lori
Marcotte were obtained going back as far as January 1994, as
well as Lori Marcotte's personal credit card going back to
March 1993. These records are consistent with the recollections
of the Marcottes and other witnesses concerning lunches at the
Beef Connection, Red Maple, Emerils, and Romairs, and reveal
charges at those restaurants on the days shown in the following
chart:\295\
---------------------------------------------------------------------------
\295\Designations in Table 4 reflect that Lori Marcotte used both a
personal (P) and corporate (C) American Express account. Records for
the Red Maple charges do not indicate the date of the month on which
the charges were incurred.
Bodenheimer testified that Louis's and Lori's other sister,
Lisa Marcotte, was occasionally in attendance at these lunches,
and there are charges on Lisa Marcotte's American Express
account for meals at the Red Maple and Beef Connection,
consistent with the amounts set forth above, in this same time
period. Lori Marcotte and Lisa Marcotte confirmed that on
occasion Lisa was in attendance at lunches with Judge Porteous
and paid for the meals.
Automobile repairs and maintenance--early 1990's. The
Marcottes, through their employees Jeffery Duhon and Aubrey
Wallace, began to take care of Judge Porteous's various
automobiles (including those of his family).\296\ This service
included picking up Judge Porteous's car to have it washed,
detailed, and filled up with gas, as well as more significant
repairs. As Louis Marcotte described: ``[F]irst, I started
washing it. And then, you know, after I would wash it, I would
add a little gas to it. And then it escalated from there, you
know. Then the mechanical work started, the tires, the radios
in the cars, and then his son's cars, and transmissions and
stuff like that.''\297\ Danos recalled an incident where she
went to pick up Judge Porteous's car from the repair shop, and
the proprietor told her that the Marcottes were paying for the
repairs.\298\
---------------------------------------------------------------------------
\296\Louis Marcotte TF Hrg. III at 45-46.
\297\Louis Marcotte TF Hrg. III at 45. See also, Louis Marcotte FBI
Interview, 4/29/04, at 3-4 (Ex. 72(d)). In his FBI interviews, Louis
specifically recalled Judge Porteous requesting that Marcotte replace
four tires on the car, and in a follow-up phone call to the FBI, Louis
Marcotte reported that a car stereo for Judge Porteous's car was
purchased at ``Delta Electronics'' and that tires were purchased at
``Uniroyal.'' The tire business's name had changed and was called
``Premier Tire'' at the time of the interview. Louis Marcotte FBI
Interview, Apr. 22, 2004, at 1 (Ex. 72(b)); Louis Marcotte FBI
Interview, Apr. 26, 2004 (Ex. 72(c)).
\298\Danos testified she knew that the Marcottes paid for the
repairs ``Because I, I remember Gus [the mechanic] saying it was taken
care of or whoever was working there at the time.'' Danos Dep. I at 55-
56 (Ex. 46).
---------------------------------------------------------------------------
Duhon testified that he ``took care of three of [Judge
Porteous's] cars. I had his, his son's, and his wife['s].'' As
to what he meant by ``took care of them,'' Duhon explained:
``Anything. Mostly keeping them maintained, maintenance up on
them, transmission, brakes, tune-ups, air condition[ing],
anything that was wrong with his automobiles, his three
automobiles.'' Duhon specifically recalled: ``I had a
transmission rebuilt in a Cougar, brake job. I used to tune
them up, get them tuned up a lot.''\299\
---------------------------------------------------------------------------
\299\Duhon Dep. at 10, 12 (Ex. 78).
---------------------------------------------------------------------------
Aubrey Wallace, another Marcotte employee, similarly
testified that ``I was assigned on some occasions, several
occasions to do detail of the car, just basic maintenance. If
it needed some maintenance work, I would bring it to the proper
place that it needed to go.'' By ``detailing'' Wallace meant:
``Generally, just cleaning the car inside and out, gassing it
up. If there were any additional work that I needed to do, it
would be specified to me what I needed to do.''\300\
---------------------------------------------------------------------------
\300\Wallace Dep. at 6-7 (Ex. 83).
---------------------------------------------------------------------------
As with the meals, sometimes Louis offered and sometimes
Judge Porteous solicited car service. As Louis described:
``Well, sometimes we would be at lunch and he would say, `Well,
you know, my car is not running well,' and I would say, `Okay,
Judge, I will take care of that.' And there was also requests
from him, you know, asking me to do it. So it worked both
ways.''\301\
---------------------------------------------------------------------------
\301\Louis Marcotte TF Hrg. III at 46.
---------------------------------------------------------------------------
Trip to Las Vegas with Judge Giacobbe and Attorney Bruce
Netterville. In or about 1992, the Marcottes invited Judge
Porteous and Danos,\302\ among others (including attorneys who
helped the Marcottes in their business), on a trip to Las Vegas
with them. Judge Porteous did not attend this trip, though
Danos did. The trip included attending a ``Siegfried and Roy''
show, as well as a flight over the Grand Canyon. One of the
dinner bills paid for by Lori Marcotte was particularly
expensive--``the largest bill we had ever paid for
dinner.''\303\ Photographs have been obtained of guests sitting
around the table, and of Lori Marcotte holding the bill.\304\
---------------------------------------------------------------------------
\302\The Marcottes had similar incentives to pay for Danos as they
did for Judge Porteous--she was a gatekeeper to Judge Porteous and
would help the Marcottes have access to him, and dealt with the jail on
bond matters on behalf of Judge Porteous. See e.g., Danos Dep. I at 6
(Ex. 46). In fact, one measure of the importance of Judge Porteous to
the Marcottes is the fact that they gave things to his secretary as
well to ensure access to him.
\303\Lori Marcotte Dep. at 29-30 (Ex. 76);
\304\Lori Marcotte Dep. Ex. 2 (Ex. 202); Lori Marcotte Dep. Ex. 6
(Ex. 206).
---------------------------------------------------------------------------
Thereafter, from approximately 1992 through 1994, the
Marcottes paid for at least one, and maybe two, trips for Judge
Porteous to Las Vegas.
One of the Las Vegas trips included another State judge--
Judge George Giacobbe--as well as Netterville, one of the
criminal attorneys with whom the Marcottes had dealings in a
professional capacity. That trip to Las Vegas is confirmed by
Netterville and Lori Marcotte and was also mentioned in the
Wiretap Affidavit.\305\ Louis Marcotte testified he wanted
attorneys to be on the trip with him and Judge Porteous because
``it just doesn't look good with a bail bondsman hanging out
with judges. So what I did is I brought some attorneys in to
make it look good.''\306\
---------------------------------------------------------------------------
\305\Affidavit in Support of Application, In the Matter of the
Application of the United States of America for an Order Authorizing
the Interception of Wire Communications, Misc. No. 01-2607 (E.D. La.,
Aug. 27, 2001) (redacted) at 47 (PORT 793)) (Ex. 69(f)). Judge Porteous
also admitted going on this trip in a November 1994 interview with the
New Orleans Metropolitan Crime Commission--a respected private citizens
watchdog agency--though he denied that the Marcottes paid for him.
Interview of United States District Court Judge G. Thomas Porteous by
Anthony Radosti and Rafael C. Goyaneche, III, Metropolitan Crime
Commission, Nov. 9, 1994 (part of Ex. 85).
\306\Louis Marcotte TF Hrg. III at 46.
---------------------------------------------------------------------------
Both Louis Marcotte and Lori Marcotte claimed they split
the costs of the trip with the attorneys and did so by paying
cash to Judge Porteous's secretary Danos. Louis Marcotte
testified:
Q. LOkay. Now, do you recall how Judge Porteous'[s]
travel was arranged for and/or paid for?
A. LYes. My sister brought cash money to Rhonda, and
Rhonda had wrote the check to pay everything, and we
reimbursed her. And we got money from the lawyers for
half of it.
Q. LAnd how is it that you happen to remember that?
A. LBecause that's just one thing that you'd remember.
Q. LOkay. And was there, was there conscious thought
about paying Rhonda so the money wouldn't come--look
like it's coming right from you to Judge Porteous?
A. LRight.\307\
---------------------------------------------------------------------------
\307\Louis Marcotte Dep. at 14-15 (Ex. 68). As written up by the
FBI, Louis Marcotte stated in an April 2004 interview:
On this [Las Vegas] trip the lawyers and LOUIS split the
cost of Judge PORTEOUS' expenses and gave the money to
DANOS to put it through her checkbook in order to hide the
payments. DANOS then wrote a check to pay for the expenses
so there was no direct link between LOUIS, JUDGE PORTEOUS
---------------------------------------------------------------------------
and [others].
Louis Marcotte FBI Interview, 4/30/04 at 5 (Ex. 72(a)). See also, Louis
Marcotte FBI Interview, Apr. 22, 2004 at 3 (Ex. 72(b)). Lori Marcotte
told the FBI that Louis paid for Judge Porteous's airfare, hotel, food
and expenses at a club. Lori Marcotte FBI Interview, Mar. 30, 2004 at 2
(Ex. 74(b)).
Lori Marcotte likewise recalled ``standing in [Danos's] office,
with another attorney, handing her the money.''\308\ According
to Lori Marcotte, this trip to Las Vegas, paid for by the
Marcottes, was initiated at Judge Porteous's request.\309\
---------------------------------------------------------------------------
\308\Lori Marcotte TF Hrg. III at 56.
\309\``LORI remembered DANOS called LOUIS [Marcotte] and told LOUIS
that PORTEOUS was ready to go to Las Vegas.'' Lori Marcotte FBI
Interview, Apr. 21, 2004 at 1 (Ex. 74(d)) See also Lori Marcotte FBI
Interview, Apr. 2, 2004 at 6 (Ex. 74(c)).
---------------------------------------------------------------------------
Attorney Netterville testified that he did not recall how
much he actually paid for the trip but acknowledged that if he
had been asked to pay for more than his individual personal
share (i.e., if he had been asked to chip in for the judges) he
would have done so. Netterville testified:
Q. LBut you don't doubt that if Louis said your share
of this trip is ``X'' dollars that that's something you
would have paid?
A. LYes, I would have.\310\
---------------------------------------------------------------------------
\310\Netterville Dep. at 11-12 (Ex. 92(a)).
Possible second trip to Las Vegas. Louis Marcotte and Lori
Marcotte both testified they believed there was a second trip
where they took Judge Porteous to Las Vegas, a fact that
appears supported by Danos as well. Louis recalled a second
trip because he ``remember[ed] we were standing by a slot
machine, and his wife was asking him for some change to put--
some dollars to put back in, coins, you know, to put back into
the slot machine.''\311\
---------------------------------------------------------------------------
\311\Louis Marcotte TF Hrg. III at 47.
---------------------------------------------------------------------------
Lori Marcotte also testified there may have been a second
trip to Las Vegas paid for by the Marcottes, possibly in
connection with Judge Porteous speaking at a Professional Bail
Agents of the United States (PBUS) Convention.\312\
---------------------------------------------------------------------------
\312\Lori Marcotte FBI Interview, Mar. 30, 2004 at 2 (Ex. 74(b));
Lori Marcotte FBI Interview, Apr. 2, 2004 at 8 (mentioning possible
trip associated with a bail bonds convention) (Ex. 74(c)).
---------------------------------------------------------------------------
Danos did not recall Judge Porteous taking the previously
described trip with Judge Giacobbe and the attorneys (a trip
that she did not attend).\313\ However, she, like Lori
Marcotte, recalled what appeared to be a different Marcotte-
Judge Porteous trip to Las Vegas in connection with one of the
PBUS conventions that Danos herself attended:
---------------------------------------------------------------------------
\313\Danos Dep. I at 15 (Ex. 46).
Q. L[D]id the Marcottes ever take Judge Porteous to Las
Vegas, either with you on any trip that you were in
attendance on or on a trip that you know they took him
---------------------------------------------------------------------------
on even if you were not in attendance on?
A. LOne Las Vegas trip.
Q. LOkay. And what do you recall about that trip?
A. LNot very much. It was their convention. And I think
they would have liked for him to have spoken, but they
already had speakers lined up.
Q. LOkay. And you were in attendance on that trip?
A. LYes, sir.\314\
---------------------------------------------------------------------------
\314\Danos Dep. I at 15 (Ex. 46). See also Danos Dep. II at 11
(recalling being on a Marcotte trip to Las Vegas with Judge Porteous)
(Ex. 47).
---------------------------------------------------------------------------
* * *
Q. LThe trip which there was a bail bond convention
going on, and I think it's your testimony that to the
best of your recollection this was still when he was a
State judge, I take it, is it your testimony that that
was a trip that was paid for by the Marcottes?
A. LI think it was.\315\
---------------------------------------------------------------------------
\315\Danos Dep. I at 17 (Ex. 46).
Consistent with both Louis's and Lori's testimony, Danos
did recall that on one occasion the Marcottes reimbursed her
for Judge Porteous's trip to Las Vegas. Danos did not dispute
that it was Lori who paid her in cash.\316\
---------------------------------------------------------------------------
\316\Danos Dep. II at 12 (Ex. 47). See also Danos Dep. I at 18
(``One trip I do recall putting the judge's fare on my card. But I,
don't recall if it was Lori or Louis that reimbursed me.'') (Ex. 46).
---------------------------------------------------------------------------
Fence repairs. In or about 1994--while Judge Porteous was
still a State judge--Marcotte's employees Duhon and Wallace
rebuilt a fence at Judge Porteous's house. They were there more
than 1 day and also performed other repairs at the house. They
both recalled picking up lumber at Home Depot and described the
incident in consistent terms.\317\ Louis Marcotte described the
incident as follows: ``[W]e were at lunch and he mentioned,
`Well, look, my fence blew over in the storm.' And I said,
`Well, you know, I got two guys that will take care of it for
you. No problem.'''\318\ Lori Marcotte confirmed they paid for
a fence for Judge Porteous.\319\
---------------------------------------------------------------------------
\317\See Duhon Dep. at 13-14 (Ex. 78); Wallace Dep. at 10-11 (Ex.
83). The fence repairs occurred either prior to Wallace's February 1991
incarceration or subsequent to his August 1993 release.
\318\Louis Marcotte TF Hrg. III at 46. See also, Louis Marcotte FBI
Interview, Apr. 29, 2004, at 7-8 (Ex. 72(d)).
\319\Lori Marcotte FBI Interview, Mar. 30, 2004, at 2 (Ex. 74(b)).
---------------------------------------------------------------------------
Favors for Judge Porteous's Son. The Marcottes permitted
one of Judge Porteous's sons to use one of their parking spaces
near the courthouse for his courier business. They also hired
his son on occasion.
2. Judge Porteous's Actions on Behalf of the Marcottes
Setting Bonds. When Louis Marcotte first entered the bail
bonds business as the owner of Bail Bonds Unlimited (BBU), he
did not have connections with judges or other law enforcement
personnel in the 24th JDC where he did the bulk of his work.
Louis and Lori came to know Judge Porteous through another
bondsman--Adam Barnett (who in turn knew Judge Porteous from
other connections in the courthouse).\320\ On occasion, when
Louis Marcotte needed a ``difficult'' bond to be set, Barnett
would go to Judge Porteous to have him set the bond. Barnett
was not an employee of Marcotte's, but Louis Marcotte would
provide Barnett some portion of the premium that was paid by
the individual for whom bond was posted.
---------------------------------------------------------------------------
\320\At some point in 1993, Judge Porteous officiated at Adam
Barnett's wedding, which was also attended by Lori Marcotte.
---------------------------------------------------------------------------
Louis Marcotte gradually excluded Barnett as the middleman
and he and Lori began to deal with Judge Porteous directly. As
Louis and Lori began to do things for Judge Porteous--described
in the previous section--Judge Porteous became the ``go-to''
judge for the Marcottes. Over the time period roughly between
1990 through 1994, as the Marcottes increasingly gave Judge
Porteous things of value, they would increasingly go to Judge
Porteous to have him set bonds at amounts they requested, and
would seek other favors from him. It started ``just a little
bit'' but, as Lori Marcotte described: ``[I]n the end it was a
lot. It was an everyday, everyday thing in the courthouse. We'd
go to the courthouse to see him in his office, call him on his
cell phone, call him at home, contact him through his
secretary. If he wasn't in the office, she would find him for
us, get, get him off the bench. When we needed him to set a
bond, he was available for us to set a bond, or split a bond
too.''\321\ As to the frequency of their contacts: ``A few
times a week. And sometimes when we would go to see him, we'd
have more than one bond, sometimes ten at a time. We would make
a stack of worksheets and bring bonds. So it's not so much how,
how many times in a week. It's when we did go, we always had
more than one.''\322\
---------------------------------------------------------------------------
\321\Lori Marcotte Dep. at 13-14 (Ex. 76).
\322\Lori Marcotte Dep. at 14 (Ex. 76).
---------------------------------------------------------------------------
Louis Marcotte described the reasons he gave Judge Porteous
things of value as follows:
Q. LThe real question, Mr. Marcotte, is, why did you do
all of these things for Judge Porteous? What value were
you getting by virtue of the fact that you were
providing him this stream of value?
A. LI wanted service, I wanted access, and I wanted to
make money.\323\
---------------------------------------------------------------------------
\323\Louis Marcotte TF Hrg. III at 47.
The Marcottes' access to Judge Porteous is corroborated by
numerous witnesses who saw the Marcottes around his courtroom
or in his chambers.\324\ For example, Marcotte employee Duhon
testified that Louis Marcotte would go to Judge Porteous more
than to any other judge in the courthouse to get bonds set. He
further described Louis's access to Judge Porteous as follows:
---------------------------------------------------------------------------
\324\Other witnesses describe the Marcottes' frequent access to
Judge Porteous. These witnesses include Lori Marcotte, Danos,
Netterville (a criminal defense attorney who associated with the
Marcottes), Aubrey Wallace (Marcotte employee), and Bodenheimer (a
prosecutor at the time, and eventually a State judge).
Q. L[W]ould you describe what it would be like to have
Judge Porteous go in and set bond at the request of
---------------------------------------------------------------------------
Louis?
A. LYes. He'd get to his chambers at 9:00 in the
morning, and they might have 10 or 12 lawyers waiting
there. Me and Louis would just walk right by both of
them, all of them and walk into his office and have a
seat carrying sheets of paper which is like bond form
we bring to them, and he let them see them.\325\
---------------------------------------------------------------------------
\325\Duhon Dep. at 7-9 (Ex. 78).
Splitting bonds. One way in particular that Judge Porteous
helped the Marcottes was through a practice referred to as
``splitting'' a bond. If a bond for a serious crime would
otherwise naturally be set at an amount that would be too high
for an accused to pay the required premium, a judge could
``split'' the bond into two pieces--one portion was a standard
commercial bond, the other was a property bond or other
personal promise not backed up by a bondsman. As an example, a
$100,000 bond could be ``split'' into a regular $50,000
commercial bond and a $50,000 component that was secured by
property or by the promise of a third party (the accused's
mother, for example) to pay $50,000 if the accused did not
appear as required.\326\ By splitting the bond, the accused
needed only to come up with the premium for the $50,000 piece,
that is, $5,000. A judge's action in splitting a high bond
would mean that the Marcottes would receive some premium rather
than no premium.
---------------------------------------------------------------------------
\326\Louis Marcotte noted that, frequently, the bail component that
was not backed by a surety bond may have had no real value. Louis
Marcotte TF Hrg. III at 48 (``[M]ost of the time the personal surety
wasn't worth anything, and the only portion of the bond that was worth
something was the commercial part of the bond that was executed by the
bail agent and backed by the insurance company.'').
---------------------------------------------------------------------------
A ``split bond'' had political value for the elected State
judges who ``liked setting high bonds, because if it came out
in the newspaper that, you know, something happened and the guy
[who was let out on a split bond] did something wrong, then it
would look like he got out on a high bond.''\327\ A judge who
``split'' a bond could claim that he did not actually reduce
the bond (even though in substance this was the effect).
Certain individuals in the law enforcement community opposed
this practice, and there were some judges who would not
``split'' bonds.\328\
---------------------------------------------------------------------------
\327\Louis Marcotte TF Hrg. III at 47.
\328\See Lori Marcotte Dep. at 15 (Ex. 76). As described by the FBI
in its wiretap affidavit:
[I]t is common practice for bondsmen to attempt to get a bond reduced
in order to make a bond more affordable; however, there is a built-in
reluctance to grant such requests, especially in cases where serious
crimes are involved. This reluctance is based primarily on the fact
that a Judge, who depends on the public vote to keep his/her job, fears
potential serious criticism from the public in general and from the
media in particular if a defendant commits another serious crime while
out on bond. Splits are a much more attractive means of making bonds
``affordable'' because a Judge can always argue he/she did not ``reduce
---------------------------------------------------------------------------
a bond.''
Affidavit in Support of Application at 20-21, In the Matter of the
Application of the United States of America for an Order Authorizing
the Interception of Wire Communications, Misc. No. 01-2607 (E.D. La.,
Aug. 27, 2001) (redacted) at 20-21 (Ex. 69(f)).
Judge Porteous became associated with this practice of
``splitting bonds'' and bragged about having invented it (even
though it may have been done by other judges in the past).
Former State Judge Bodenheimer testified it was his
understanding that Judge Porteous ``was the one who somehow
came up with this idea of doing these bond splittings'' and
that Louis Marcotte ``told me that Porteous was, was the one
who came up with the idea about splitting bonds in the first
place.''\329\ Lori Marcotte stated that ``because Judge
Porteous was respected in the courthouse by other judges, his
peers, the District Attorney's office, Judge Porteous--by Judge
Porteous splitting and setting bonds for us was making it like
the norm, creating the practice of splitting bonds. He actually
originated this practice of splitting bonds.''\330\
---------------------------------------------------------------------------
\329\Bodenheimer Dep. at 6-7 (Ex. 86).
\330\Lori Marcotte Dep. at 17 (Ex. 76). The act of setting a bond
is entrusted to a Judge's discretion, so it cannot be argued that the
actions of Judge Porteous in splitting or reducing in bond in any
particular cases was ``right'' or ``wrong,'' or that splitting bonds in
general was either appropriate or inappropriate across the board.
---------------------------------------------------------------------------
Setting aside convictions. Judge Porteous took other
significant official actions as favors to the Marcottes. In
1993 at Louis Marcotte's request, he set aside the burglary
conviction of Jeffery Duhon. Duhon was not only an employee of
the Marcottes but was also married to Lisa Marcotte (Louis's
other sister).\331\ Louis Marcotte testified he ``approached
Porteous to see if he would expunge Jeff Duhon's record'' and
that Judge Porteous did so.\332\ Judge Porteous's action in
setting aside Duhon's conviction was particularly unusual
because Duhon had been sentenced by Judge E. V. Richards, not
Judge Porteous, ``[s]o what [Judge Porteous] did was he took
the conviction out of another section and brought it in his
section and then expunged the record.''\333\ Louis Marcotte
elaborated that in his experience, it was unusual for a judge
in one division to expunge a conviction in a criminal case
assigned to a judge in a different division.\334\
---------------------------------------------------------------------------
\331\In 2003, after Louis Marcotte was publicly identified as the
subject of a criminal investigation, Judge Porteous's expungement of
Duhon's record was reported in the local newspapers:
Duhon said it was Porteous who gave him his break in
1992, when the judge expunged his felony record as a favor
to Marcotte, allowing him to apply for a bail bonds
license. Duhon had been arrested for burglary when he was
17, a charge for which he served 93 days in jail for
---------------------------------------------------------------------------
probation violation, he said.
M. Carr and M. Torres, ``Judges Were Given Gifts; Marcotte's Ex-workers
Tell of Shrimp, Fence,'' New Orleans Times-Picayune, Feb. 8, 2003 (part
of the Metropolitan Crime Commission Documents, at MCC 0199-200 (Ex.
85), and separately marked as Ex. 119(e)).
---------------------------------------------------------------------------
\332\Marcotte Dep. at 6-8 (Ex. 68). Exhibit 77(a) is the Motion for
Expungement. That Motion is undated, however, it was assigned to
``Division B''--Judge E.V. Richards--of the 24th Judicial District
Court. Judge Richards set a hearing on that Motion for July 15, 1993.
It is not known if that hearing took place. Ex. 77(b) is the Judgment
of Expungement dated July 29, 1993, signed by Judge Porteous.
\333\Louis Marcotte TF Hrg. III at 48.
\334\Marcotte Dep. at 6-8 (Ex. 68).
---------------------------------------------------------------------------
Additionally, as discussed below, on the eve of his
ascension to the Federal bench in October 1994, Judge Porteous
set aside the conviction of Aubrey Wallace, another Marcotte
employee.
Helping the Marcottes with Judge Alan Green and other
Judges. As noted, Judge Porteous was a former prosecutor, had a
good relationship with the District Attorney, and was perceived
by many in the courthouse to be influential on the bench.\335\
By forming a public relationship with Judge Porteous, the
Marcottes gained credibility with other State judges on the
24th JDC. Thus, the Marcottes sought to have other State judges
included in their lunches with Judge Porteous. Louis Marcotte
told the FBI he ``wanted to target judges who were not doing
bonds and asked RHONDA DANOS [Judge Porteous's secretary] to
invite them to lunch with Judge PORTEOUS.''\336\ An FBI write-
up of another Louis Marcotte interview recounts: ``MARCOTTE
frequently called on PORTEOUS to help bring in other judges
MARCOTTE could use to split bonds, reduce bonds and give
MARCOTTE good service.''\337\
---------------------------------------------------------------------------
\335\Bodenheimer testified: ``Out of all the judges there--Porteous
came from the District Attorney's Office--and he was probably the most
influential judge with the District Attorney's office, in my opinion.'
Bodenheimer Dep. at 5 (Ex. 86). Netterville similarly testified that
Judge Porteous was perceived to be an influential Judge on the 24th
JDC. Netterville Dep. at 9 (Ex. 92).
\336\Louis Marcotte FBI Interview, May 17, 2004 at 2 (Ex. 72(e)).
\337\Louis Marcotte FBI Interview, Apr. 22, 2004 at 3 (Ex. 72(b)).
---------------------------------------------------------------------------
As one example, Judge Porteous helped connect the Marcottes
with Judge Alan Green (who was ultimately convicted of a
corruption offense arising from his relationship with the
Marcottes). Lori Marcotte described this in her Task Force
Hearing testimony as follows:
I remember setting up a lunch with some other judges
and some attorneys and Judge Porteous and Rhonda, and
we had--they had invited or we had invited Judge Green
who was newly elected. And, I mean, it is pretty clear
because that was really the first lunch where Judge
Porteous had explained the concept of splitting bonds.
That was kind of like the stage for everything else
that would happen.\338\
---------------------------------------------------------------------------
\338\Lori Marcotte TF Hrg. III at 57. See also Lori Marcotte FBI
Interview, Apr. 2, 2004 at 1 (Ex. 74(c)) (``After Green won the
election, Lori and Louis discussed initiating a relationship with Green
via Judge Porteous. Porteous got Green to come to lunch with Porteous
and the Marcottes which was set up by Danos [Porteous's secretary].
They had lunch at Romer's (ph) [should be `Romair's'].''). Danos also
identified Judge Green as one of the judges who accompanied them with
Judge Porteous on lunches when he was a State judge. Danos Dep. I at 27
(Ex. 46).
This practice of having Judge Porteous vouch for the
Marcottes with the State judges in the 24th JDC continued after
Judge Porteous became a Federal judge.
Helping in civil ``non-compete'' litigation. The Marcottes
also requested that Judge Porteous help lobby other judges on
their behalf in connection with ``non-compete'' litigation
initiated by the Marcottes against a former employee. As
written up by the FBI, Lori Marcotte described the request for
assistance in a BBU civil case against a former employee, Bobby
Gene Hollingsworth, as follows:
BBU [Bail Bonds Unlimited] sued BOBBY HOLLINGSWORTH
over a non-compete clause in his contract. LOUIS
MARCOTTE went to JUDGE PORTEOUS and wanted JUDGE
PORTEOUS to call JUDGE CLARENCE McMANNUS and tell him
how to rule. JUDGE PORTEOUS said he would contact JUDGE
McMANNUS and called him while LOUIS MARCOTTE was in
JUDGE PORTEOUS' chambers. McMANNUS ruled in favor of
BBU.\339\
---------------------------------------------------------------------------
\339\Lori Marcotte FBI Interview, Nov. 5, 2004 at 2 (Ex. 74(e)).
The official court case jacket is consistent with this
recollection, and reveals that the Marcottes (Bail Bonds
Unlimited) filed the case against Hollingsworth in August 1994,
shortly prior to Judge Porteous taking the Federal bench. The
Marcottes initially obtained a Temporary Restraining Order
restraining Hollingsworth from competing against them, then
obtained a permanent injunction which was to be in effect until
September 1995.\340\
---------------------------------------------------------------------------
\340\Bail Bonds Unlimited v. Bobby Gene Hollingsworth, No. 467-905,
Div. E (J. McManus) (24th Jud. Dist. Ct., Jeff. Par., La.) (Ex. 91(b)).
---------------------------------------------------------------------------
C. The July-August 1994 Background Check
of Judge Porteous
The bulk of the background investigation of Judge Porteous
in connection with his nomination to the Federal bench occurred
in July and early August 1994. On August 1, 1994, Louis
Marcotte was interviewed as part of that standard background
check. It is not known how the FBI got Louis Marcotte's name as
a person to interview; however, Marcotte testified that Judge
Porteous told him ``that the FBI is going to be coming to
interview you.''\341\ Louis Marcotte told the FBI as follows:
---------------------------------------------------------------------------
\341\Louis Marcotte TF Hrg. III at 51.
MARCOTTE said the candidate [Porteous] is of good
character and has a good reputation in general. He said
the candidate is well-respected and associates with
attorneys who are upstanding individuals. He does not
know the candidate to associate with anyone of
questionable character.\342\
---------------------------------------------------------------------------
\342\Porteous Background Check Documents, at PORT 503-04 (Ex.
69(b)).
As to Judge Porteous's drinking and financial situation, the
---------------------------------------------------------------------------
write-up reports:
He [MARCOTTE] advised that the candidate will have a
beer or two at lunch, but has never seen him drunk. He
has no knowledge of the candidate's financial
situation.\343\
---------------------------------------------------------------------------
\343\Porteous Background Check Documents, at PORT 503-04 (Ex.
69(b)).
Louis Marcotte acknowledged that these statements about
Judge Porteous's financial situation and drinking habits were
false. As to Judge Porteous's financial condition, Marcotte has
since testified that he knew at the time that Judge Porteous
was ``struggling'': ``[B]y looking at the surroundings and the
problems with the drinking and the cars and asking people for
repairs and stuff like that, you know, one would think that,
hey this guy is struggling. And by looking at the cars, you
could see that he was struggling.''\344\ He further described
Judge Porteous's cars as being in ``deplorable
condition.''\345\
---------------------------------------------------------------------------
\344\Louis Marcotte TF Hrg. III at 49.
\345\Louis Marcotte TF Hrg. III at 49 (``I knew he was struggling,
because his cars were in deplorable condition.'').
---------------------------------------------------------------------------
As to Judge Porteous's drinking, Louis Marcotte bluntly
described his statement to the FBI that Judge Porteous would
have a ``beer or two'' at lunch in the following terms:
``That's a false statement.''\346\ Marcotte testified that he
was familiar with Judge Porteous's drinking, and ``knew that he
[Judge Porteous] was an alcoholic. He drank a lot. . . . He
would drink four or five glasses of Absolut for lunch.''\347\
---------------------------------------------------------------------------
\346\Louis Marcotte Dep. at 12 (Ex. 68).
\347\Louis Marcotte Dep. at 11 (Ex. 68). In his Task Force Hearing
testimony, Louis Marcotte repeated his testimony that Judge Porteous
would have numerous vodka drinks at lunch and that he deliberately
misled the FBI about his knowledge of Judge Porteous's drinking. Louis
Marcotte TF Hrg. III at 49. Thus, Louis Marcotte, like Robert Creely,
was not candid with the FBI as to both Judge Porteous's financial
circumstances and as to his drinking.
---------------------------------------------------------------------------
Finally, the FBI interview quoted Louis Marcotte as stating
that he ``was not aware of anything in the candidate's
background that might be the basis of attempted influence,
pressure, coercion or compromise or would impact negatively on
the candidate's [Judge Porteous's] character, reputation,
judgement or discretion.'' Louis Marcotte acknowledged that he
``was lying again,'' not only because of his knowledge of Judge
Porteous's ``actions with the gambling, the drinking'' but
because of Louis Marcotte's knowledge of his own relationship
with Judge Porteous, which gave him leverage over Judge
Porteous.\348\
---------------------------------------------------------------------------
\348\Louis Marcotte TF Hrg. III at 50.
---------------------------------------------------------------------------
After the initial portion of the background check had been
completed, FBI Headquarters directed that further investigation
be conducted as a result of some derogatory information that
was uncovered (including allegations as to Judge Porteous's
drinking and that he was living above his means).\349\
---------------------------------------------------------------------------
\349\Porteous Background Check Document, at PORT 462-63 (Ex.
69(c)).
---------------------------------------------------------------------------
On August 17, 1994, Louis Marcotte was briefly
reinterviewed,\350\ and the background investigation was
completed a few days later.\351\
---------------------------------------------------------------------------
\350\Louis Marcotte FBI Interview, Aug. 17, 1994, at PORT 513-14
(Ex. 69(b)). The FBI was primarily concerned with certain bonds that
Judge Porteous had set at the request of an attorney at a time prior to
Marcotte having formed a relationship with Judge Porteous.
\351\Note to DOJ re: Judge Porteous, Aug. 19, 1994, at PORT 530
(Ex. 69(b)).
---------------------------------------------------------------------------
At the Task Force Hearing, Marcotte testified that after
the FBI interview (it was not clear which one), he met with
Judge Porteous and ``told him [Judge Porteous] everything that
they asked about''\352\ and that he had given Judge Porteous
``a clean bill of health.''\353\
---------------------------------------------------------------------------
\352\Louis Marcotte TF Hrg. III at 51.
\353\Louis Marcotte TF Hrg. III at 64.
---------------------------------------------------------------------------
On August 25, 1994, Judge Porteous was nominated by
President Clinton to be a United States District Court Judge
for the Eastern District of Louisiana.
D. Judge Porteous's Actions to Benefit the Marcottes During His Final
Months on the State Bench
1. September-October 1994 Set-Aside of Wallace's Felony Conviction
After he was nominated, and around the time of his Senate
confirmation process, Judge Porteous was pressed by Louis
Marcotte to set aside the felony burglary conviction of his
employee Aubrey Wallace.\354\ As described by Louis Marcotte:
---------------------------------------------------------------------------
\354\Wallace had been arrested on burglary charges on May 8, 1989;
he pleaded guilty to the felony charge of simple burglary on June 26,
1990 and was sentenced the same day to a suspended sentence of 3 years
incarceration and placed on probation for 2 years. State v. Wallace,
No. 89-2360 (24th Jud. Dist. Ct., Jeff. Par., La.) (court case file)
(Ex. 82). At the time of his May 1989 burglary arrest, Wallace was
under indictment for felony drug charges (PCP and cocaine) for an
offense alleged to have occurred on December 15, 1988.
While he was on probation for the burglary conviction, Wallace
pleaded guilty on February 26, 1991, to the felony drug charges of
possession of over 28 grams of cocaine and possession of PCP and was
---------------------------------------------------------------------------
sentenced to 5 years incarceration.
Q. L[W]hat was Judge Porteous's response when you made
that request of him?
A. LHe waffled a little bit because he wasn't confirmed
at the time, but he told me--I saw him a few times, I
pushed him and said, you know, ``Judge, you know, I
really need to get this done.'' He said, ``After my
confirmation, I will do it.''
Q. LAnd, in fact, did he do it?
A. LYes, he did.
Q. LAnd, in your mind, do you have an opinion as to why
Judge Porteous set aside Wallace's conviction?
A. LBecause all of the stuff that I have done for him
in the past.
Q. LWas there any question in your mind that he set
aside the conviction as a favor to you?
A. LYes, he did it for me.\355\
---------------------------------------------------------------------------
\355\Louis Marcotte TF Hrg. III at 51. Louis Marcotte's Task Force
Hearing testimony tracked his statement to the FBI in 2004 in which he
stated that Judge Porteous wanted to wait until after his Senate
confirmation to set aside Wallace's conviction:
PORTEOUS waited until the last days of his term as a 24th
Judicial District Court Judge to expunge AUBREY WALLACE'S
criminal record. PORTEOUS did not want the fact that he
expunged WALLACE'S record to be exposed in the media or
discovered in his background investigation for his Federal
judicial appointment. PORTEOUS told MARCOTTE that he
(PORTEOUS) would act on WALLACE'S expungement after he was
appointed to the Federal judicial bench. PORTEOUS told
MARCOTTE he was not going to risk a lifetime judicial
---------------------------------------------------------------------------
appointment for WALLACE.
Louis Marcotte FBI Interview, Oct. 15, 2004 at 1 (Ex. 72(g)). Lori
Marcotte specifically recalled that ``we went to Judge Porteous to ask
him if he would expunge Aubrey Wallace's criminal record. My brother
and myself, we went to Judge Porteous'[s] office.'' Lori Marcotte Dep.
at 25-26 (Ex. 76).
Setting aside Wallace's burglary conviction required Judge
Porteous to take two steps: first, the sentence for Wallace's
burglary conviction--a sentence which Wallace had completed--
had to be amended from one which, as a matter of law, was not
eligible to be set aside, to one that could be set aside;
second, the sentence, having been so amended, would then need
to be set aside.
On September 20, 1994, Robert Rees, an attorney who did
occasional criminal work and thus had interactions with the
Marcottes, filed a motion on behalf of Wallace to set aside
Wallace's conviction. This was a bare-bones motion, reciting
only that Wallace had been sentenced in 1990 and now ``desires
to amend his sentence to give him benefit under Article
893.''\356\
---------------------------------------------------------------------------
\356\Motion to Amend Sentence, State of Louisiana v. Aubrey N.
Wallace, No. 89-2360 (24th Jud. Dist Ct., Jeff. Par., La.), Sept. 20,
1994, (part of Ex. 82). Wallace's first name is spelled ``Aubry'' in
the court records from this case. The correct spelling of his first
name is in fact ``Aubrey.'' Accordingly, throughout this Report, his
first name will be spelled ``Aubrey'' regardless of how it may have
been spelled in court records.
---------------------------------------------------------------------------
On September 21, 1994, Judge Porteous held a hearing in
which he took the first step in the set aside process, by
amending Wallace's sentence to make it eligible to be set
aside. At that hearing, Netterville (an attorney who did
business with the Marcottes and who had traveled to Las Vegas
with Judge Porteous and Louis Marcotte in or about 1992 or
1993) stood in for Rees. Netterville did not recall this
hearing or how he came to stand in for Rees, and he did not
consider Wallace a client. His appearance was limited to his
saying ``Thank you, Judge'' and ``Thank you.'' The entire
hearing was less than one transcript page, the critical portion
consisting of Judge Porteous's conclusion: ``Accordingly, the
sentence will be amended to include removal of the
unsatisfactory removal of probation and the entering of the
plea under Code of Criminal Procedure 893. All right. I've
signed the order.''\357\
---------------------------------------------------------------------------
\357\Transcript of Proceedings, State of Louisiana v. Aubrey
Wallace, No. 89-2360 (24th Judicial Dist. Ct., Jeff. Par.), Sept. 21,
1994, at PORT 0620-24 (part of Ex. 69(d)). Probation was initially
deemed to have been unsatisfactorily completed because Wallace was
incarcerated while on probation.
---------------------------------------------------------------------------
On Thursday, September 22, 1994, Judge Porteous signed the
written order that was proposed as part of the underlying
September 20, 1994 Motion. The Order amended the sentence so
that it would represent that the defendant pleaded guilty under
a provision of State law (Article 893) which permitted the
conviction to be set aside.\358\
---------------------------------------------------------------------------
\358\The Order stated in full:
---------------------------------------------------------------------------
ORDER
Considering the foregoing, IT IS ORDERED that the
sentence on Aubrey WALLACE is hereby amended to include the
following wording, ``the defendant plead under Article
893.''
GRETNA, LOUISIANA this 22 day of September, 1994.
G. Thomas Porteous /s/
JUDGE
Order (amending sentence), Louisiana v. Aubrey N. Wallace, No. 89-2360
(24th Jud. Dist Ct., Jeff. Par., La.), Sep. 22, 1994 (part of Ex. 82).
Judge Porteous's Senate confirmation hearing occurred 2
weeks later, on Thursday, October 6, 1994. He was confirmed by
the Senate on Friday, October 7, 1994, and received his
commission the following Tuesday, October 11, 1994.
On Friday, October 14, 1994, 1 week after being confirmed
but prior to being sworn in as a Federal judge (which occurred
on October 28, 1994), Judge Porteous held another hearing on
the Wallace matter to finish the process, this time with Rees
appearing for Wallace. Again, the transcript of the entire
hearing takes up but one transcript page, starting as follows:
Mr. Reese:
LYou Honor, Robert Reese on behalf of--
--
Judge Porteous:
LI'm going to grant that. I've already
amended the sentence to provide for a 893.
* * *
LUnder 893 the dismissal will be
entered.\359\
---------------------------------------------------------------------------
\359\Transcript of Proceedings, State of Louisiana v. Aubrey N.
Wallace, No. 89-2360 (24th Jud. Dist. Ct., Jeff. Par., La.), Oct. 14,
1994, at PORT 000625-29 (Ex. 69(d)). The attorney's name was Robert
Rees (without the ``e''). It is reported in the documents as Robert
``Reese,'' and that spelling is used in the quoted materials. The
prosecutor in the courtroom for the two hearings, Assistant District
Attorney Michael Reynolds, stated in a Task Force Staff interview on
January 5, 2010, that the set-aside didn't ``smell right'' to him at
the time, that it was wrong as a matter of discretion and perhaps
illegal, but that because of Judge Porteous's close relationship with
the then-District Attorney, there was nothing he could do.
---------------------------------------------------------------------------
On October 19, 1994, Judge Porteous signed again the same order he
had previously signed on September 22, 1994 (the order amending the
sentence to permit it to be set aside). It is not known why he signed
this second identical order. It was actually signed after Judge
Porteous had set aside the conviction.
Judge Porteous also signed a written order that date to the
same effect, thus setting aside Marcotte employee Wallace's
1990 burglary conviction.\360\
---------------------------------------------------------------------------
\360\Order (setting aside arrest and dismissing charges), State of
Louisiana v. Aubrey N. Wallace, No. 89-2360 (24th Jud. Dist Ct., Jeff.
Par., La.), Oct. 14, 1994 (part of Ex. 82).
---------------------------------------------------------------------------
November 1994--Judge Porteous's Interview by the
Metropolitan Crime Commission. Shortly after setting aside
Wallace's conviction, an allegation was made to the New Orleans
Metropolitan Crime Commission (MCC)--a citizen's watchdog
group--concerning the lawfulness of Judge Porteous's actions in
setting aside Wallace's conviction. Judge Porteous was
interviewed by MCC representatives on November 8, 1994, 11 days
after he became a Federal judge.
In that interview, Judge Porteous denied having
``frequent'' lunches with the Marcottes, denied that the
Marcottes paid his way to Las Vegas, and denied that he amended
Wallace's sentence out of friendship or at the request of Louis
Marcotte. That interview was written up as follows:
Upon arrival we advised Judge Porteous that the
purpose of our meeting was to question him regarding
his amendment of the Aubrey N. Wallace sentence. . . .
In particular we advised Judge Porteous that we wanted
to ask him about his relationship with Louis Marcotte.
. . . The Judge stated ``lets not sugar coat anything,
in other words you guys think I'm dirty.'' We replied
that we had some questions about his handling of the
Aubrey Wallace case and welcomed an explanation of his
reasoning in this matter. . . .
The Judge freely admitted that he has known Mr.
Marcotte for a number of years and considers him to be
a friend. We asked the Judge if he frequently ate lunch
with Mr. Marcotte and provided him with the name of the
two restaurants they frequent. He admitted that he has
had several lunches with Mr. Marcotte, but he didn't
know if he would term his lunches with Marcotte as
``frequent.'' Additionally, we asked if he had traveled
to Las Vegas with Mr. Marcotte and he confirmed that he
had. The Judge stated that six or seven people went as
a group to Vegas and Marcotte was a member of the
group. The Judge when asked did Marcotte pay his way,
quickly changed the subject. Porteous when asked a
second time advised that Marcotte did not pay his way
to Vegas.
* * *
The Judge vehemently denied that he amended the
sentence out of friendship for or at the request of
Louis Marcotte.
The Judge stated he felt he had done nothing
criminal, but stated that the Assistant District
Attorney had the authority to appeal his ruling it was
improper. The Judge ended the meeting by telling us to
``do what you think you have to do.'' . . .\361\
---------------------------------------------------------------------------
\361\Interview of United States District Court Judge G. Thomas
Porteous by Anthony Radosti and Rafael C. Goyaneche, III, Metropolitan
Crime Commission, Nov. 9, 1994 (part of Ex. 85).
These events were reported in the New Orleans Times-
---------------------------------------------------------------------------
Picayune in a March 19, 1995 article:
U.S. District Judge Thomas Porteous, while serving
his final weeks on the state bench in Jefferson Parish,
illegally amended a convicted drug offender's burglary
sentence and then removed it from the man's record,
according to the Metropolitan Crime Commission.\362\
---------------------------------------------------------------------------
\362\J. Darby, Amending Sentence Questioned, Federal Judge Defends
Actions, New Orleans Times-Picayune, B-1, Mar. 19,1995 (Ex. 119(a)).
The Lawfulness of the Set-Aside. The action of Judge
Porteous setting aside Wallace's burglary conviction was not
appealed by the State and thus not subject to review as to its
lawfulness. Nonetheless, the observations of a practicing
attorney in this field are noteworthy. Netterville, the
attorney who stood in to represent Wallace at the initial set-
aside hearing, has handled hundreds of set-aside motions in his
career and understands the law and practice involved in the
process. Notwithstanding that Netterville actually appeared for
Wallace in open court in seeking the set-aside, he testified in
a Task Force deposition that he would not have accepted that
case from a paying client and viewed the set-aside as legally
---------------------------------------------------------------------------
improper:
Q. LIf a client, if a person came to you and said I
want to hire you to have my conviction set aside and .
. . I wasn't sentenced under Article 893 [which permits
set asides] and my probation was unsatisfactorily
terminated, what would you tell them?
A. LI'd say you can't hire me because it can't be done.
Q. LSo that's more--I mean, isn't that more than just
being irregular to highly irregular.
A. LNo, it's highly irregular. You can't, you can't do
it. If the district attorney had objected and taken a
writ, he would have won in my opinion.\363\
---------------------------------------------------------------------------
\363\Netterville Dep. at 18-19 (Ex. 92(a)).
Whether or not the set-aside was unlawful, the facts at a
minimum demonstrate that on the eve of his taking the Federal
bench, Judge Porteous took the ``highly irregular'' official
act of setting aside the felony conviction of one of Marcotte's
employees, at the personal request of Marcotte and as a favor
to him. The fact that Judge Porteous timed this judicial act to
occur after his confirmation is strong evidence that he knew of
its impropriety and that he knew that it evidenced his improper
relationship with the Marcottes. It is not possible to
challenge the ``merits'' of a decision to set aside a
conviction (any more than it is possible to challenge the
exercise of discretion in setting a bond), for such an act
inherently embodies the judgment of a judge as to whether an
individual merits this significant benefit. However, in this
---------------------------------------------------------------------------
instance, the following factors are noteworthy:
LWallace had two felony convictions in a short
period of time (stemming from the 1989 drug charge and
the 1990 burglary charge, which occurred while on
release from the drug charge). Wallace had been
released from prison for about a year on the drug
charge, and was still on parole for that offense at the
time Judge Porteous set aside Wallace's burglary
conviction.
LIt is consistent with Judge Porteous's other
conduct as a judge that benefitted Louis Marcotte.
Indeed, Judge Porteous had previously set aside the
conviction for Marcotte's brother-in-law (Duhon).
LThere was no compelling justification for
Judge Porteous to set aside the conviction in the last
days of his tenure on the State bench. The motions and
orders were bare-bones, handled by persons close to
Louis Marcotte and Judge Porteous. There were no facts
adduced at the hearings or in the pleadings in support
of the motion, such as a contention of extraordinary
rehabilitation.
LJudge Porteous knew that Wallace, like Duhon,
had worked on his cars and his house.
LMoreover, even if both the legality and the
merits could be argued, at the time he set aside the
conviction, Judge Porteous was indebted to Marcotte,
who had assisted him by lying on his behalf in the
confirmation process. So long as Judge Porteous was a
State judge--and particularly when Judge Porteous was
seeking to become a Federal judge--Louis Marcotte had
leverage over Judge Porteous by virtue of Marcotte's
knowledge of their corrupt relationship.
2. Judge Porteous's Bond-Setting in His Final Days on the State Bench
Louis Marcotte also recalled that when Judge Porteous was
about to leave the State bench, Marcotte used him to ``open the
floodgates'' in terms of setting bonds: ``I figured he was on
his way out and let's open the floodgates and let me try to
make as much money as I can before he left.''\364\ In response
to questioning from Mr. Schiff at the Task Force hearing, Louis
Marcotte explained: ``Now, prior to that [the last days on the
bench], you know, there was a ton of bail applications as well,
but my words were `Well, let's wear him [Judge Porteous]
out.'''\365\ Marcotte's testimony has been corroborated by a
series of bond forms that were obtained from the Sheriff's
Office and the 24th JDC reflecting numerous bonds set by Judge
Porteous, for prisoners for whom the Marcottes posted bonds, in
the last days of his tenure on the State court bench. \366\
---------------------------------------------------------------------------
\364\Louis Marcotte TF Hrg. III at 51. See also Louis Marcotte Dep.
at 24 (Ex. 68). Louis Marcotte's Task Force Hearing testimony was
consistent with what he told the FBI in 2004: ``After PORTEOUS was
appointed to the Federal bench, he expunged WALLACE'S record and did
almost every bond MARCOTTE asked.'' Louis Marcotte FBI Interview, Oct.
15, 2004 at 1 (Ex. 72(g)). From Judge Porteous's perspective, at the
time he set aside Wallace's conviction and signed the bonds on the
``way out,'' he knew that Louis Marcotte had been interviewed twice by
the FBI, and had the power to derail his nomination, and, further, that
this was one of his last opportunities to set bonds for the Marcottes.
\365\Louis Marcotte TF Hrg. III at 58.
\366\See Exs. 350 (a)-350(zz). Louis Marcotte TF Hrg. III at 51.
---------------------------------------------------------------------------
E. Judge Porteous's Relationship with Louis Marcotte and Lori Marcotte
While He Was a Federal Judge
1. Overview
Judge Porteous and the Marcottes continued to maintain a
relationship after he became a Federal judge. Even though Judge
Porteous could no longer set bonds for them, the Marcottes
continued to take Judge Porteous to expensive lunches, assisted
in having him speak at Bail Bond conventions in Biloxi
Mississippi (at the Beau Rivage Resort) and in New Orleans at
the Royal Sonesta Hotel, and took his secretary Rhonda Danos to
Las Vegas at least twice, to maintain access to Judge Porteous.
Louis Marcotte explained that because Judge Porteous was a
Federal judge, he ``brought strength to the table'' on any
issues for which the Marcottes sought his assistance,
particularly maintaining and forging new relationships with
other State judicial officers and business executives.
In his Task Force Hearing testimony, Louis Marcotte was
blunt about the prestige that Judge Porteous provided by being
at the ``table'' with him:
A. LBecause, number one, he was a Federal judge. Right
there, that brings strength to the table whenever he
sits down with me.
* * *
A. LIt would make people respect me because, you know,
I am sitting with a Federal judge.
* * *
Q. LSo it is good for you to be sitting with a Federal
judge if you are meeting with somebody else, right?
A. LYes, sir.\367\
---------------------------------------------------------------------------
\367\Louis Marcotte TF Hrg. III at 52. See also Louis Marcotte Dep.
at 16 (Louis Marcotte maintained a relationship with Judge Porteous
``[b]ecause whenever I brought Porteous to the table, I brought
strength. . . . Because other judges respected him and they listened to
him when he talked.'') (Ex. 68).
Judge Porteous, while a Federal judge, helped the Marcottes
meet at least four judicial officers--newly elected Justices of
the Peace Charles Kerner and Kevin Centanni, and newly elected
State judges Ronald D. Bodenheimer and Joan Benge. In addition,
Judge Porteous also went with the Marcottes to meals that were
also attended by Norman Stotts, the executive for the insurance
company that underwrote the Marcottes' bonds. In each instance,
Louis Marcotte's explanation of how Judge Porteous ``brought
strength'' and helped him with these individuals is
corroborated by other witnesses and evidence.
2. Maintaining the Marcotte-Porteous Relationship
Both Louis Marcotte and Lori Marcotte testified that they
continued to take Judge Porteous to lunches when he was a
Federal judge--typically with others, and frequently with other
State judges. Their testimony on this fact is corroborated by
records that were obtained, including calendars of Bail Bonds
Unlimited (BBU), noting some of the activities of Louis and
Lori Marcotte in the 1999-2002 time frame; various credit card
records of Louis Marcotte, Lori Marcotte, and other BBU
employees; and several meal checks from the Beef Connection
going back to August 1997. Thus, as reflected in the following
table, several meals can be identified as including Judge
Porteous while he was a Federal judge:\368\
---------------------------------------------------------------------------
\368\The exhibits supporting the first four dates in the table
include, for each date, a copy of the meal check from the Beef
Connection and the pertinent page from Lori Marcotte's American Express
Card. The meal checks reflect the purchase of ``Abs'' or ``Abso''--
short for ``Absolut''--Judge Porteous's drink of choice. The respective
exhibits are Ex. 372(a) for August 6, 1997; Ex. 372(b) for August 25,
1997; Ex. 372(c) for November 19, 1997; and Ex. 372(d) for August 5,
1998. The exhibits for the last two dates also include the pertinent
pages from a BBU calendar that contain a reference to Judge Porteous on
the given date. See Ex. 373(c) (February 1, 2000) and Ex. 373(d)
(November 7, 2001).
---------------------------------------------------------------------------
In addition, there are other calendar entries mentioning potential
lunch appointments with Judge Porteous on other dates for which no
corresponding or corroborating credit card statements reflecting
restaurant charges were located. Nonetheless, the very presence of
Judge Porteous's name in the Marcotte calendars starting in 1999
reflects an ongoing relationship during the years while he was on the
Federal bench.
PBUS Convention at the Beau Rivage--July 1999. In July
1999, the PBUS held its annual convention at the Beau Rivage
resort in Biloxi, Mississippi. The Marcottes paid for some of
the events and entertainment at that convention. Judge
Porteous's room was paid for by PBUS,\369\ however Danos's room
was paid for by the Marcottes. Photos taken at that convention
show Judge Porteous in the company of Louis Marcotte and
Marcotte employee Norman Bowley, among others, at the cocktail
reception hosted by BBU.\370\
---------------------------------------------------------------------------
\369\Judge Porteous's hotel room of $206.00 was paid by PBUS, and
other food and entertainment for Judge Porteous was provided by PBUS
and the Marcottes. Judge Porteous did not disclose this reimbursement
in his Financial Disclosure Report for calendar year 1999. In contrast,
Judge Porteous did disclose the following comparable events for which
he was reimbursed: (1) ``Jefferson Bar Association, 4/15/99, Speaker
CLE Seminar, Biloxi, Mississippi (Hotel);'' (2) ``Louisiana State Bar
Association, 6/9-6/12/99, Speaker CLE Seminar, Destin Fla. (Hotel, Food
and Mileage)''; and, (3) ``LSU Trial Advocacy Program, 8/9-8/11/99,
Faculty Member, Baton Rouge, La (Hotel, Food and Mileage).'' Judge
Porteous's receipt of hotel accommodations at a gambling location from
the PBUS arose from his association with the Marcottes, and his failure
to report the receipt of this reimbursement is consistent with an
attempt to conceal that relationship.
\370\The photographs were identified by Lori Marcotte in her
deposition. See Lori Marcotte Dep. Exs. 23 and 24 (Exs. 223 and 214).
---------------------------------------------------------------------------
3. Judge Porteous's Assistance to the Marcottes
a. 1997--Helping with Newly Elected Justice of the Peace
Charlie Kerner
Charlie Kerner was the Justice of the Peace in Lafitte, a
city about 30 minutes outside of New Orleans. Both Louis
Marcotte and Lori Marcotte testified that Judge Porteous helped
them try to forge a relationship with Justice of the Peace
Kerner. Louis Marcotte testified that they had Judge Porteous
attend a lunch with Kerner: ``We sat down at the Beef
Connection. We ate with Kerner. And then we thought we had a
good lunch, and, and Kerner had listened to Porteous. And then
after we called Kerner, he kind of froze up on us.''\371\
---------------------------------------------------------------------------
\371\Louis Marcotte Dep. at 16-17 (Ex. 68).
---------------------------------------------------------------------------
Kerner confirmed that on one occasion, when Judge Porteous
was a Federal judge, he (Kerner) arranged to have lunch with
Judge Porteous and Danos.\372\ Kerner sought to have lunch with
Judge Porteous to thank him for having sworn him in as Justice
of the Peace.\373\ Kerner had ``a lot of respect'' for Judge
Porteous and was ``honored'' that Judge Porteous had sworn him
in.\374\
---------------------------------------------------------------------------
\372\This discussion of events is set forth in Justice of the Peace
Kerner's deposition.
\373\The lunch would have been in 1997, Kerner having been elected
in late 1996.
\374\Kerner Dep. at 6 (Ex. 79).
---------------------------------------------------------------------------
On the day of the lunch, Kerner received a call from Danos
stating that Louis Marcotte, whom Kerner had never met, would
be joining them and that the Marcottes would pay for lunch. At
that lunch, in the presence of Judge Porteous and Danos,
Marcotte spread law books and other materials over the lunch
table and tried to explain to Kerner the authority that Kerner
possessed to set bonds to help Marcotte. As Kerner described
it:
[H]e [Louis Marcotte] produced some law books to me and
had a outline of what he felt as a magistrate and
saying setting bonds or whatever would be in my
jurisdiction to help him to lower the bonds, you know,
so they can help people like that. That's the way he
presented it to me.
* * *
Well, he wanted me to help him, help them, I guess, if
someone say if the bond could be lowered in a margin
that would be affordable to them. That's the way I took
it.\375\
---------------------------------------------------------------------------
\375\Kerner Dep. at 9 (Ex. 79).
Kerner testified that when Louis was giving this
presentation: ``[I] felt a little uncomfortable. I'll say that.
I felt a little uncomfortable.''\376\ The respect Kerner felt
towards Judge Porteous and the honor he felt by Judge
Porteous's presence affected Kerner's willingness to hear what
the Marcottes had to say.\377\ After that lunch, Kerner spoke
to another Justice of the Peace who knew the Marcottes, and
after that conversation he decided he wanted nothing to do with
them.\378\
---------------------------------------------------------------------------
\376\Kerner Dep. at 12 (Ex. 79).
\377\Kerner Dep. at 13-14, 16-17 (Ex. 79).
\378\Kerner Dep. at 10-11 (Ex. 79). Lori Marcotte, in her Task
Force testimony described this event in similar terms: ``We had Rhonda
set up a lunch and had Judge Porteous attend. And we went to the Beef
Connection and we showed up. My brother had the law book in his hand,
and we had instructed Judge Porteous to explain about the power of the
Justice of the Peace being able to set bonds. And he did.'' Lori
Marcotte TF Hrg. III at 56-57.
---------------------------------------------------------------------------
b. 1997--Helping with Newly Elected Justice of the Peace
Kevin Centanni
Lori Marcotte, in her FBI interviews in 2004\379\ and Task
Force interviews, stated that Judge Porteous also arranged for
them to meet newly elected Justice of the Peace Kevin Centanni.
As with Justice of the Peace Kerner, the Marcottes' efforts to
cultivate a relationship with Centanni were not successful.
---------------------------------------------------------------------------
\379\Lori Marcotte FBI Interview, April 21, 2004 at 5 (Ex. 74(d)).
According to the FBI write-up, Lori Marcotte stated: ``PORTEOUS talked
to KEVIN CENTANNI, a Justice of the Peace in Jefferson Parish, about
doing bonds. CENTANNI did a couple of bonds but stopped because he felt
uncomfortable doing the bonds.''
---------------------------------------------------------------------------
Centanni, when interviewed by the FBI in 2004, recalled a
meal at the Beef Connection with the Marcottes and other
judges, at which he ``believed'' Judge Porteous was in
attendance.\380\ At that lunch, according to the FBI write-up,
Louis Marcotte gave Centanni information on bond setting and
bond splitting. ``CENTANNI believed MARCOTTE was trying to
educate CENTANNI to get CENTANNI to do bonds for MARCOTTE,
however, CENTANNI rarely set bonds.''\381\
---------------------------------------------------------------------------
\380\Centanni FBI Interview, July 6, 2004 at 1 (Ex. 69(h)). When
interviewed by Task Force staff on January 6, 2010, Justice of the
Peace Centanni stated he did not recall whether Judge Porteous was
present.
\381\Centanni FBI Interview, July 6, 2004 at 2 (Ex. 69(h)).
---------------------------------------------------------------------------
c. 1999--Helping with Newly Elected State Judge Ronald
Bodenheimer
In 1999, Judge Porteous took steps to assist the Marcottes
in forming a relationship with newly elected State Judge Ronald
Bodenheimer. Shortly after Bodenheimer was elected, Louis
Marcotte asked Judge Porteous to help the Marcottes form a
relationship with Bodenheimer. During his Task Force Hearing
testimony, Louis Marcotte was asked to describe what he asked
Judge Porteous to do with regard to Bodenheimer. Louis Marcotte
described his request to Judge Porteous as follows:
A. LJudge, tell this guy [Bodenheimer] I am a good guy.
Tell him that commercial bonds is the best thing for
the criminal justice system and that--ask him would he
take--ask him would he take your spot when--because you
left now and I needed somebody to step in to Porteous's
shoes so I can get the same things done that I got done
when Porteous was there.
Q. LDo you know whether or not Judge Porteous spoke to
Judge Bodenheimer?
A. LYes, he did.
Q. LAnd after he spoke to Judge Bodenheimer, did your
relationship with Judge Bodenheimer change as a result?
A. LYes, it did. Bodenheimer became the Porteous of the
24th District Court.\382\
---------------------------------------------------------------------------
\382\Louis Marcotte TF Hrg. at 53. Similarly, when asked what the
Marcottes requested of Judge Porteous, Lori Marcotte responded: ``The
same thing that we--that Judge Porteous did with us with the other
judges, to, to introduce us to him, to get close to him, to--he was
familiar with bond splitting because he was a D.A., Judge Bodenheimer.
But just to establish trust and to help us split bonds, to get us to
help us split bonds.'' Lori Marcotte Dep. at 46 (Ex. 76). She testified
that Bodenheimer ``took Judge Porteous'[s] place.'' Id. at 47.
Bodenheimer confirmed Louis Marcotte's testimony. He
testified in the grand jury: ``I distanced myself from him
[Marcotte]. Porteous knew it.''\383\ Bodenheimer recalled that
Judge Porteous told him that he [Judge Porteous] ``knew that I
didn't really like Louis Marcotte and that group very much but
they were really--they really weren't as bad as people thought
they were, that he [Louis Marcotte] was a pretty good
guy.''\384\
---------------------------------------------------------------------------
\383\Bodenheimer GJ at 11 (Ex. 89).
\384\Bodenheimer Dep. at 12 (Ex. 86). See also id. at 13 (Judge
Porteous told Bodenheimer ``regardless of what preconceived notions I
might have about them, that [Louis Marcotte] really wasn't a bad guy,
that he wouldn't steer me wrong, if he tells me something about a
particular defendant and a bond, I can take it to the bank, he won't
lie to me.'').
---------------------------------------------------------------------------
Bodenheimer had appeared as a prosecutor in front of Judge
Porteous in State court in the early 1990's and ``looked up''
to Judge Porteous. Thus, Judge Porteous's comments about the
Marcottes were significant to Bodenheimer and affected his
willingness to form a relationship with the Marcottes. As
Bodenheimer explained:
Q. LSo how did the fact that Judge Porteous--how did
the fact that you looked up to Judge Porteous
influence, influence you in interpreting the comments
that Judge Porteous made in your dealings with the
Marcottes?
A. LI had a lot of respect for Judge Porteous. I had a
lot of respect for him as a person. I had a lot of
respect for him and his rulings. I had been with him
for a long time, and I knew he was very, very, just in
my opinion, was very, very smart. And if he told me
something, I wouldn't question it.
Q. LSo when he vouched for the Marcottes, that was very
significant for you in your willingness to form a
relationship with the Marcottes?
A. LYes.\385\
---------------------------------------------------------------------------
\385\Bodenheimer Dep. 13-15 (Ex. 86). He testified consistently in
the Grand jury:
I distanced myself from [Marcotte]. Porteous knew it. And
he [Porteous] says, ``I know you got this bad taste in your
mouth for him. I know that you've heard these rumors about
him and cocaine.'' He said, ``Let me tell you. It's not
true. He's a good guy. You can trust him. If you got
problems with bonds go see him. He'll never steer you
---------------------------------------------------------------------------
wrong. He'll never get you hurt.''
Bodenheimer GJ at 11 (Ex. 89).
Over time, Bodenheimer would attend lunches with Louis Marcotte
and Judge Porteous. Louis Marcotte would pay: ``[I]t would be
the better restaurants, maybe like the Beef Connection. . . .
Of course, we did go to Emeril's one time. But mostly it would
be something like the Beef Connection or a place called the Red
Maple[.]''\386\
---------------------------------------------------------------------------
\386\Bodenheimer GJ at 20 (Ex. 89). See also Bodenehimer Dep. at
15-17 (Ex. 86).
---------------------------------------------------------------------------
Bodenheimer, who ended up ``[taking] Judge Porteous'[s]
place,'' ultimately pleaded guilty to Federal corruption
charges arising from his relationship with the Marcottes.\387\
---------------------------------------------------------------------------
\387\See, e.g., Superseding Bill of Information for . . . for
Conspiracy to Commit Mail Fraud, United States v. Ronald. D.
Bodenheimer, Crim. No. 02-291 (E.D. La.), Mar. 31, 2003, at 3 (Ex.
88(d)).
---------------------------------------------------------------------------
d. March 2002--Helping with Newly Elected State Judge Joan
Benge
In 2001, Joan Benge was elected to the State bench. Louis
Marcotte sought to get to know her and wanted Judge Porteous to
be at a March 2002 lunch at ``Emeril's'' that included himself,
Judge Benge and others.\388\ As Louis Marcotte testified:
---------------------------------------------------------------------------
\388\Louis Marcotte TF Hrg. III at 53-54.
A. LWell, Benge was a new judge. And basically what we
tried to do was rally a bunch of judges to have lunch
with Porteous, and he could tell them how great the
bail bond business is and how, how. . . .
* * *
Q. LAnd did you want Judge Porteous to be there
because----
A. LYes, I did. Because I wanted to show strength. He's
a Federal judge, and when he--if he spoke, then they
would listen.\389\
---------------------------------------------------------------------------
\389\Louis Marcotte Dep. at 18-19 (Ex. 68).
As described by Bodenheimer, Louis Marcotte arranged the
lunch and told him that he wanted to have Judge Benge present
because ``he didn't really know her that well and he wanted to
get to meet her.'' He also knew that Judge Benge, who had been
a prosecutor in the 24th JDC, ``respected him [Judge Porteous]
as much as I did.''\390\ As it turned out, Judge Porteous
arrived late for the meal, and only had drinks.\391\ The
Emeril's credit card receipt and meal check for $414 has been
obtained. Louis Marcotte paid for this lunch with his American
Express card. The FBI surveilled and videotaped this March 2002
lunch, at which Judge Porteous, Louis Marcotte, Bodenheimer and
Judge Benge (as well as BBU staff and Judge Benge's secretary)
were in attendance.\392\
---------------------------------------------------------------------------
\390\Bodenheimer Dep. at 20 (Ex. 86).
\391\Bodenheimer Dep. at 20 (Ex. 86).
\392\Louis Marcotte TF Hrg. III at 53-54. Photographs that span the
period from 1993 to 2002 have been obtained that depict Judge Porteous
with Wrinkled Robe convicted conspirators Louis Marcotte, Lori
Marcotte, Norman Bowley, and Ron Bodenheimer.
---------------------------------------------------------------------------
e. Meals with Insurance Company Representative Norman
Stotts
The Marcottes' bonds were underwritten by an insurance
company called ``Amwest.'' As Louis Marcotte described, the
Marcottes were in essence insurance agents for Amwest and bail
bonds were, in essence, insurance policies that would pay the
court if a defendant did not show up as required.\393\ Amwest
would receive from the Marcottes a portion of the premiums. As
the Marcottes were, in substance, selling Amwest insurance
policies, Amwest had a vital interest in the Marcottes'
profitability and business practices and could, for example,
limit the dollar amount of bonds they could write.
---------------------------------------------------------------------------
\393\``A bail bondsman is no more than a State Farm agent. We are
licensed through the Commission of Insurance. We carry a property and
casualty license. And the insurance company supplies us with policies
that we can post at the jail so we can get defendants out. It is not
real money; it is just a policy. If the defendant doesn't show up in
court, then the courts cash the policy.'' Louis Marcotte TF Hrg. III at
42.
---------------------------------------------------------------------------
On a regular basis, Amwest would send a high level company
official, Norman Stotts, to meet with the Marcottes. Louis and
Lori would take him out to lunch and include Judge Porteous. As
Louis described: ``It makes me look good with the insurance
company. It gives me more writing authority to write big bonds,
you know. It just showed strength in my organization by having
a Federal judge sitting with me at the table.''\394\
---------------------------------------------------------------------------
\394\Marcotte Dep. at 15-20 (Ex. 68).
---------------------------------------------------------------------------
In his FBI interview, Stotts confirmed that he went to
lunch with Judge Porteous on occasions when Judge Porteous was
a Federal judge.\395\ Danos also recalled attending a lunch
with Stotts.\396\
---------------------------------------------------------------------------
\395\Stotts FBI Interview, Dec. 18, 2002, at 22 (Ex. 69(g)). Stotts
also confirmed having meals with the Marcottes that included Judge
Porteous in an interview with Task Force Staff in late 2009.
\396\Danos Dep. II at 14 (Ex. 47).
---------------------------------------------------------------------------
F. The Wrinkled Robe Investigation and the Prosecution of Louis
Marcotte, Lori Marcotte, and Louisiana State Judges
In 1999, the United States Attorney's Office for the
Eastern District of Louisiana commenced a broad investigation
of Louis Marcotte's corrupt relationship with Louisiana State
judges and other State law enforcement officials. The FBI
labeled this investigation ``Wrinkled Robe.'' In August 2001,
the FBI sought and obtained wiretaps, and in June 2002, the FBI
executed a search warrant at the Marcottes' offices.
The results of the investigation included the convictions
of Louis Marcotte and Lori Marcotte for their actions in giving
things of value to State judges and other State law enforcement
officials (such as jail employees) who helped them in their
bail bonds business. Two State judges (Bodenheimer and Green)
and other State law enforcement officials were also convicted
on Federal corruption charges arising from their relationships
with the Marcottes. By any reasonable interpretation of the
evidence, Judge Porteous's conduct was indistinguishable (if
not more extensive) from the conduct of the other two State
judges who were convicted.
1. Bodenheimer's Guilty Plea
Bodenheimer pleaded guilty in March 2003 to conspiracy to
commit mail fraud on a ``deprivation of honest services''
theory. (This was prior to the Marcottes' guilty pleas.) Among
the overt acts charged in the Information were that he:
regularly set, reduced, and split bonds underwritten by
a Jefferson Parish bail bonding company in criminal
cases pending before him and other judges, irrespective
of whether he was scheduled for ``magistrate duty.'' .
. . BODENHEIMER routinely set the bonds at a level
requested by the bail bonding company in a manner which
would tend to maximize the company's profits; that is,
by securing the maximum amount of premium money
available from the criminal defendant and his
family.\397\
---------------------------------------------------------------------------
\397\Superseding Bill of Information for . . . Conspiracy to Commit
Mail Fraud, United States v. Ronald D. Bodenheimer, Crim. No. 02-219
(E.D. La.), Mar. 31, 2003, at 3 (Ex. 88(d)).
---------------------------------------------------------------------------
It is of no consequence that the judge--be it Bodenheimer or Judge
Porteous--may have taken the same discretionary acts in setting,
splitting, or reducing bonds or setting aside convictions even without
accepting the financial inducements from the Marcottes to do so. A
judge has significant discretion to exercise as he or she deems fit--
just not in exchange for things of value. In this regard, the Committee
notes by way of reference that the Federal courts have reached the same
understanding in interpreting the bribery laws. Public officials
accused of taking bribes have occasionally attempted to defend their
conduct, or claim a lack of corrupt intent, on the grounds that they
would have taken the same act or reached the same decision anyway, or
that the official acts alleged to have been committed for things of
value were affirmatively ``good'' for the community.
One Federal circuit court addressed and rejected these arguments as
follows: ``It is neither material nor a defense to bribery that `had
there been no bribe, the (public official) might, on the available
data, lawfully and properly have made the very recommendation that (the
briber) wanted him to make.''' United States v. Janotti, 673 F.2d 578,
601 (3d Cir. 1982) (citing United States v. Labovitz, 251 F.2d 393, 394
(3d Cir. 1958)). In Labovitz, the court explained: ``It is a major
concern of organized society that the community have the benefit of
objective evaluation and unbiased judgment on the part of those who
participate in the making of official decisions. Therefore, society
deals sternly with bribery which would substitute the will of an
interested person for the judgment of a public official as the
controlling factor in official decision.'' United States v. Labovitz,
251 F.2d at 394.
The standard Federal criminal jury instruction on this topic tracks
the above cases, and provides: ``It is not a defense to the crime of
bribery as charged in Count of the indictment that the [offer] [or]
[promise] [demand] [or] [receipt] of anything of value was made [to]
[by] the public official to influence an official act which is actually
lawful, desirable, or even beneficial to the public.'' O'Malley, Grenig
& Lee, 2 Fed. Jury Prac. & Instr. Sec. 27:11 (6th ed.). See also United
States v. Dorri, 15 F.3d 888, 890 (9th Cir. 1994) (same).
The sorts of things Judge Bodenheimer received from the
Marcottes were similar to those things that the Marcottes gave
to Judge Porteous. Louis Marcotte, according to Bodenheimer,
``worked on my house,'' ``took us on fishing trips,'' and
``took us to the Beau Rivage [casino] to a show.''\398\ The
factual proffer signed by Bodenheimer stated that he
``enriched[ed] himself by setting, reducing, and splitting
bonds in various criminal matters pending before him as well as
other judges on terms most advantageous to the bail bonding
company in exchange for things of value, including meals, trips
to resorts, campaign contributions, home improvements, and
other things of value.''\399\
---------------------------------------------------------------------------
\398\Bodenheimer GJ at 25-27 (Ex. 89).
\399\Factual Basis [in Support of Guilty Plea], United States v.
Ronald D. Bodenheimer, Crim. No. 02-219 (E.D. La.), Mar. 31, 2003, at
10 (Ex. 88(f)); Bodenheimer Dep. Ex. 45 (Ex. 245).
---------------------------------------------------------------------------
On April 28, 2004 , Bodenheimer was sentenced to 46 months
incarceration on the corruption count, to run concurrently with
other offenses to which he pleaded guilty.\400\
---------------------------------------------------------------------------
\400\Judgment and Probation/Commitment Order, United States v.
Ronald D. Bodenheimer, Crim. No. 02-219 (E.D. La.), Apr. 28, 2004 (Ex.
88(h)).
---------------------------------------------------------------------------
2. Louis Marcotte Affidavit
On April 17, 2003, 2 months after a New Orleans Times-
Picayune article publicly linked Judge Porteous to accepting
things of value from Louis Marcotte as a State judge,\401\ and
1 month after Bodenheimer pleaded guilty, Louis Marcotte signed
an affidavit designed to protect Judge Porteous.\402\ That
affidavit stated, in pertinent part:
---------------------------------------------------------------------------
\401\M. Carr and M. Torres, ``Judges Were Given Gifts; Marcotte's
Ex-workers Tell of Shrimp, Fence,'' New Orleans Times-Picayune, Feb. 8,
2003 (part of the Metropolitan Crime Commission Documents, MCC 0199-200
(Ex. 85), and separately marked as Ex. 119(e)). Judge Porteous is
identified by name in that article which states:
The former employees claim Marcotte paid for car repairs
and built a fence for former 24th Judicial District Judge
---------------------------------------------------------------------------
Thomas Porteous, who now sits on the Federal bench[.]
Id.
---------------------------------------------------------------------------
\402\Louis Marcotte Dep. Ex. 80 (Ex. 280).
At no time have I ever given money or anything of value
to Judge Porteous for reducing or altering any
bond.\403\
---------------------------------------------------------------------------
\403\Marcotte Dep. Ex. 80 (Ex. 280).
Louis Marcotte testified in his deposition that the statement
---------------------------------------------------------------------------
was ``not accurate.''
Q. LOkay. And would you describe whether or not that
statement is accurate or not?
A. LIt's not accurate.
* * *
A. LI gave him meals, trips, car repairs, radios.
Q. LAnd why did you do all that?
A. LI wanted him to help me with the bonds.\404\
---------------------------------------------------------------------------
\404\Louis Marcotte Dep. at 23-24 (Ex. 68).
---------------------------------------------------------------------------
In his deposition, Louis Marcotte testified he felt
uncomfortable signing the affidavit, and ``thought my lawyer
was protecting Porteous and not me.''\405\ Nonetheless, just as
he did in 1994 in connection with the FBI background check,
Louis Marcotte made statements intended and designed to protect
Judge Porteous and to insulate him from investigation, scrutiny
and the disclosure of the relationship between the two
men.\406\
---------------------------------------------------------------------------
\405\Louis Marcotte Dep. at 23 (Ex. 68).
\406\Though the statement may be parsed as ``literally true'' if
read as a denial that Judge Porteous and Louis Marcotte had a specific
conversation where Louis Marcotte agreed to give a specific thing of
value to Judge Porteous in exchange for a specific official act, the
sweeping nature of the denial is misleading, if not outright false, in
that it conceals the numerous things of value that Louis Marcotte gave
Judge Porteous and the numerous official acts of Judge Porteous that
benefitted Louis Marcotte in return.
---------------------------------------------------------------------------
3. Louis Marcotte's and Lori Marcotte's Guilty Pleas
In March 2004, both Louis Marcotte and Lori Marcotte
pleaded guilty to an Information charging Federal corruption
offenses. Louis Marcotte pleaded guilty to Racketeering
Conspiracy. That conspiracy was alleged to have commenced prior
to 1991.\407\ The temporal scope of the scheme is consistent
with the allegations in the FBI wiretap affidavit that
generally described the inception of the corrupt relationship
between Marcotte and judges in the 24th JDC as beginning with
their relationship with Judge Porteous. Similarly, the
Information's elaboration of the acts of the judicial
conspirators describes the actions of Judge Porteous.\408\ The
Information described the racketeering conspiracy, in pertinent
part, as follows:
---------------------------------------------------------------------------
\407\Bill of Information for Conspiracy to Operate an Enterprise
through a Pattern of Racketeering Activity and Conspiracy to Commit
Mail Fraud, United States v. Louis M. Marcotte, III, and Lori M.
Marcotte, Crim. No. 04-061 (E.D. La.), Mar. 3, 2004, at 4 (Ex. 71(a)).
\408\DOJ policy generally prohibits publicly identifying uncharged
conspirators unless they have otherwise been publicly identified. Thus,
though Bodenheimer's name could be included in the Marcotte Information
as a named conspirator because he had previously pleaded guilty to a
corrupt relationship with the Marcottes, the prosecutors would not have
identified Judge Porteous in the Marcotte Information as he had not
been publicly accused.
3. LIt was a further part of the conspiracy that, in
return for things of value, certain judges would make
themselves available to BBU; quickly respond to the
requests of BBU; and set, reduce, increase, and split
bonds to maximize BBU's profits, minimize BBU's
---------------------------------------------------------------------------
liability, and hinder BBU's competition.
4. LIt was a further part of the conspiracy that, to
allow BBU to maximize profits, the conspirator judges
would engage in the practice of ``bond splitting.'' .
. . At BBU's request, the conspirator judge would set
the commercial portion of the bond at an amount the
defendant could afford and would set the balance in
some other manner. BBU would then post the commercial
portion of the bond and collect a percentage of that
bond as commission. This practice allowed BBU to
maximize its profit and minimize its liability.\409\
---------------------------------------------------------------------------
\409\Bill of Information for Conspiracy to Operate an Enterprise
through a Pattern of Racketeering Activity and Conspiracy to Commit
Mail Fraud, United States v. Louis M. Marcotte, III, and Lori M.
Marcotte, Crim. No. 04-061 (E.D. La.), Mar. 3, 2004, at 5 (Ex. 71(a)).
Bodenheimer, who had already pleaded guilty to having a
corrupt relationship with the Marcottes, was specifically
identified in the Louis Marcotte Information as one of the
judges with whom Marcotte had a corrupt relationship. That
---------------------------------------------------------------------------
relationship was described as follows:
Beginning at a date unknown and continuing until in or
about June 2002, LOUIS M. MARCOTTE, III provided
Bodenheimer with gifts, meals, and other things of
value. In return, Bodenheimer was available to BBU;
quickly responded to the requests of BBU; and set,
reduced, increased, and split bonds to maximize BBU's
profits, minimize BBU's liability, and hinder BBU's
competition.\410\
---------------------------------------------------------------------------
\410\Bill of Information for Conspiracy to Operate an Enterprise
through a Pattern of Racketeering Activity and Conspiracy to Commit
Mail Fraud, United States v. Louis M. Marcotte, III, and Lori M.
Marcotte, Crim. No. 04-061 (E.D. La.), Mar. 3, 2004, at 6 (Ex. 71(a)).
The things of value included: Louis Marcotte's hiring
Bodenheimer's daughter, paying for meals and paying for hotel
rooms. The Louis Marcotte Information further specified that
during the course of that corrupt relationship, Bodenheimer set
and split hundreds of bonds.\411\
---------------------------------------------------------------------------
\411\If ``Porteous'' were to be substituted for ``Bodenheimer''--in
the above paragraph, the charging language would aptly describe the
nature of Louis Marcotte's relationship with Judge Porteous as
established by the evidence.
---------------------------------------------------------------------------
Lori Marcotte pleaded guilty at the same time as Louis
Marcotte to conspiracy to commit mail fraud, that is, ``to
deprive the citizens of the State of Louisiana of the honest
and faithful services, performed free from deceit, bias, self-
dealing, and concealment, of certain Jefferson Parish Sheriff's
Deputies in the performance of their official duties.''\412\
---------------------------------------------------------------------------
\412\Bill of Information for Conspiracy to Operate an Enterprise
through a Pattern of Racketeering Activity and Conspiracy to Commit
Mail Fraud, United States v. Louis M. Marcotte, III, and Lori M.
Marcotte, Crim. No. 04-061 (E.D. La.), Mar. 3, 2004, at 14-15 (Ex.
71(a)).
---------------------------------------------------------------------------
Louis Marcotte was sentenced August 28, 2006 to 38 months
incarceration, followed by 3 years supervised release.\413\
---------------------------------------------------------------------------
\413\Judgment in a Criminal Case, United States v. Louis M.
Marcotte, III, Crim. No. 04-061 (E.D. La.), Aug. 28, 2006 (Ex. 71(e)).
---------------------------------------------------------------------------
Lori Marcotte was sentenced August 28, 2006 to 3 years
probation, including 6 months of home detention.\414\
---------------------------------------------------------------------------
\414\Judgment in a Criminal Case, United States v. Lori Marcotte,
Crim. No. 04-061 (E.D. La.), Aug. 28, 2006 (Ex. 73(d)).
---------------------------------------------------------------------------
4. Judge Alan Green's Conviction
Judge Alan Green was indicted September 29, 2004, along
with Marcotte employee Norman Bowley, on several charges
arising from Judge Green's corrupt relationship with the
Marcottes.\415\ The conspiracy to commit mail fraud (honest
services fraud) count (Count Two) with which Green was charged
described the scheme in terms that again track the Marcottes'
relationship with Judge Porteous (as well as Judge
Bodenheimer):
---------------------------------------------------------------------------
\415\Indictment, United States v. Alan Green and Norman Bowley,
Crim. No. 04-295 (E.D. La.), Sept. 29, 2004 (Ex. 93(a)).
2. LIt was part of the scheme and artifice to defraud
that the defendant, NORMAN BOWLEY, the defendant, ALAN
GREEN, along with Louis Marcotte, Lori Marcotte, and
others known and unknown to the Grand Jury, engaged in
a scheme to maximize BBU's and the Marcottes' profits
from writing bail bonds in Jefferson Parish and
elsewhere through the corruption of the defendant, ALAN
GREEN.
* * *
4. LIt was a further part of the scheme and artifice to
defraud that, in return for things of value, ALAN GREEN
would make himself available to BBU; quickly respond to
the requests of BBU; and set, reduce, increase, and
split bonds to maximize BBU's profits, minimize BBU's
liability, and hinder BBU's competition.
5. LIt was a further part of the conspiracy that, to
allow BBU to maximize its profits, the defendant, ALAN
GREEN, would engage in the practice of ``bond
splitting.'' . . . At BBU's request, GREEN would set
the commercial portion of the bond at an amount the
defendant could afford and would set the balance in
some other manner. BBU would then post the commercial
portion of the bond and collect a percentage of that
bond as commission. This practice allowed BBU to
maximize it profits and minimize its liability.\416\
---------------------------------------------------------------------------
\416\Id. at 18-19. The charging language in the Green case is
similar in essential aspects to a description of the Marcottes'
relationship with Judge Porteous.
On June 29, 2005, the jury found Green guilty of Count
Three of the Indictment, charging him with a single substantive
count of mail fraud. The jury did not reach a verdict on the
conspiracy count. However, Count Three incorporated by
reference the description of the scheme set forth above.
Judge Green was sentenced on February 9, 2006, to 51 months
incarceration, to be followed by 3 years of supervised
release.\417\
---------------------------------------------------------------------------
\417\Judgment in a Criminal Case, United States v. Alan Green,
Crim. No. 04-295 (E.D. La.), Feb. 9, 2006 (Ex. 93(b)).
---------------------------------------------------------------------------
G. The Marcottes' Relationship with Danos
As alluded to at various points above, the Marcottes
maintained a relationship with Judge Porteous's secretary,
Rhonda Danos, over the same time period that they maintained a
relationship with Judge Porteous. As Lori Marcotte testified:
She [Danos] could call [Judge Porteous] if he wasn't
in the office. She could get him off of the bench. . .
. Also she could call the jail, call in the bonds for
us and call to get information on the case itself. So
when Judge Porteous was off the bench, he could split
or set the bond fast.\418\
---------------------------------------------------------------------------
\418\Lori Marcotte Dep. at 28 (Ex. 76).
Thus, the Marcottes included her in the lunches with Judge
Porteous, paid for numerous expensive entertainment events, and
took her to Las Vegas four or five times, some of which took
place after Judge Porteous became a Federal judge.\419\ Danos
has also testified that ``[i]t may have been four [trips to Las
Vegas]''\420\ and that the Marcottes took her to two
``Siegfried and Roy'' shows on those trips.\421\ Notably, Lori
Marcotte testified she did not know Danos well prior to
inviting her the first time,\422\ and she explicitly linked
providing these trips with the fact that Danos had been so good
to them.\423\
---------------------------------------------------------------------------
\419\There is ample corroboration for these trips: (1) Lori
Marcotte testified she took Danos to Las Vegas in 1992 and that on that
trip they took an airplane trip over the Grand Canyon. Lori Marcotte
identified a ``certificate'' that she was given by the tour company for
that Grand Canyon trip dated February 1992. Danos also recalled that
trip and the Grand Canyon flight. (2) Louis Marcotte's credit card
records reflect that he purchased for Danos a February 1996 flight to
Las Vegas, and Golden Nugget Casino hotel records reflect a room for
Danos charged to the Marcottes' office address. Danos also recalled a
trip paid by the Marcottes at which she stayed at the Golden Nugget.
(3) Lori Marcotte's credit card records reflect her purchase for Danos
of a February 1998 flight to Las Vegas. On that trip, the Marcottes
stayed at the Luxor Hotel, and Danos shared a room with a Marcotte
employee. See, e.g., Lori Marcotte Dep. at 28-29 (Ex. 76); Danos Dep. I
at 13-14 (identifying various trips to Las Vegas); Lori Marcotte Dep.
Ex. 1 (the Grand Canyon flight certificate) (Ex. 201); Ex. 371
(containing, among other records, Louis Marcotte's credit card
statement containing charges for air travel purchased for Danos for a
trip to Las Vegas in 1996 and the Golden Nugget Casino room statement
for Danos for February 1996 (charged to the BBU address)).
\420\Danos Dep. I at 8 (Ex. 46).
\421\Danos Dep. I at 12 (Ex. 46).
\422\When asked how it came about that she took Danos to Las Vegas,
Lori Marcotte testified: ``Well, we would go to Judge Porteous's office
to get bonds set or split, and I started speaking to her at the desk
and asked her to come to Las Vegas. We were having a bail bond
convention, and we asked her to come along.'' Lori Marcotte TF Hrg. III
at 55-56.
\423\Lori Marcotte TF Hrg. III at 56.
---------------------------------------------------------------------------
To the extent that Judge Porteous would have understood
that the Marcottes gave things of value to Danos because of
official acts performed (or to be performed) by her, then his
tolerance of those activities would have, in substance, been
the condoning of a relationship based on the Marcottes'
provision and Danos's acceptance of a stream of illegal
gratuities.\424\
---------------------------------------------------------------------------
\424\Although Danos testified she believed the things of value were
solely because of a friendship, she would have known that Lori Marcotte
brought jail personnel along on at least one Las Vegas trip that Danos
attended. Notably, one of the jail employees, Edward Still, pleaded
guilty to Conspiracy to Commit Mail Fraud. The Information charged that
Still and others, including Louis Marcotte and Lori Marcotte, conspired
to defraud the citizens of Louisiana of their right to the honest
services of Still (and other Sheriff's Deputies who worked in the
jail). See Bill of Information for Conspiracy to Commit Mail Fraud,
United States v. Forges et al [including Edward Still], Crim. No. 04-
217 (E.D. La., July 21, 2004) (Ex. 95(a)). Among the overt acts in that
Information were: ``In or about February 1993, Louis Marcotte and Lori
Marcotte paid for the defendant, Edward Still, to take an expense-paid
trip to Las Vegas, Nevada.'' Id. at 4. Still admitted this event in the
``Factual Basis,'' filed in court, to support his guilty plea. See
Factual Basis at 3, United States v. Still, Crim. No. 04-217 (E.D. La.,
Sept. 1, 2004) (Ex. 97(b)). Still pleaded guilty September 1, 2004, and
received a sentence of probation. See Judgment in a Criminal Case,
United States v. Still, Crim. No. 04-217 (E.D. La., Feb. 2, 2005) (Ex.
97(c)).
---------------------------------------------------------------------------
X. THE FACTS UNDERLYING ARTICLE III--JUDGE PORTEOUS'S FALSE STATEMENTS
AND VIOLATION OF THE COURT ORDER IN CONNECTION WITH HIS PERSONAL
BANKRUPTCY
A. Overview
Judge Porteous's conduct surrounding his bankruptcy case
was characterized by numerous false statements and material
omissions on the official forms that he signed under penalty of
perjury that were filed with the court. He also violated a
court order by incurring gambling debt and other indebtedness.
These acts included filing for bankruptcy under a false name
(and with a PO Box rather than his actual residence address) to
conceal his identity, and failing to disclose an anticipated
substantial tax refund. In addition, Judge Porteous made
numerous other false or deceptive statements about his income,
liabilities, and financial activities in order to conceal his
prior and ongoing gambling activity. As a result, his unsecured
creditors (predominantly credit card companies) received a
fraction of what he owed them, while, at the same time, (1)
every casino that had ever extended credit to Judge Porteous
was paid in full, and (2) the casinos continued to extend to
Judge Porteous lines of credit which he utilized even while in
bankruptcy.
The evidence related to Judge Porteous's dealings with
Creely, Amato, other attorneys, and the Marcottes demonstrates
that Judge Porteous experienced financial difficulties
throughout the 1990's. He solicited money from friends;
accepted hundreds of meals and payments towards travel and
entertainment with no pretense that he would reciprocate; drove
vehicles in ``deplorable'' condition; and depended on others
for home and car repairs. Judge Porteous even asked Gardner to
give him money on one occasion so he could buy a Christmas
present for his wife. Many of these requests and acceptances of
meals and money occurred while on gambling trips at locations
such as Las Vegas or casinos in Mississippi.
The extent of Judge Porteous's deteriorating financial
condition in the late 1990's is reflected in his financial
records. These reveal extensive gambling expenses and credit
card debts that increased dramatically in the late 1990's and
amounted to approximately $180,000 by the end of 2000.
For years, Judge Porteous concealed the extent of these
liabilities. He annually filed false financial disclosure
reports with the Judicial Conference that materially
understated his credit card liabilities.
Ultimately, on March 28, 2001, Judge Porteous and his wife
Carmella filed for relief under Chapter 13 of the Bankruptcy
Code.
B. Judge Porteous's Financial Affairs Prior to
Filing for Bankruptcy
1. Causes of His Debt
By the time Judge Porteous took the Federal bench in
October 1994, he had a history of gambling and was an
``established player''\425\ at the Grand Casino Gulfport in
Gulfport, Mississippi. As an established player, Judge Porteous
held a $2,000 line of credit at the Grand Casino Gulfport,
which allowed him to take out $2,000 worth of markers at the
casino.\426\ After becoming a Federal judge, and prior to
filing for bankruptcy in March 2001, Judge Porteous became an
established player and opened up lines of credit at seven more
casinos.\427\ His credit limits ranged from $2,000 to $5,000.
---------------------------------------------------------------------------
\425\An ``established player'' or ``rated player'' at a casino is a
player who has filled out a credit application with the casino in order
to open up a line of credit. Established players are thereafter able to
draw on their line of credit at the casino to gamble and are also
provided with ``comps'' from the casinos, in the form of complimentary
or reduced rates on hotel rooms and free meals and drinks. As FBI
Special Agent Horner explained, there are two reasons why a gambler
would want to be rated: ``One for tax purposes, for wins and losses,
because they have to report their winnings and losings. Number two, a
gamer or gambler would want their gaming activity rated--they call it
rated play--because the casino will then give the customer food and
room specials. They will give them free shows if they play enough. They
will even give them free transportation to the casino. There is a term
of art that is used, RFB. It is called room, food, beverage. A gambler
will try to attain RFB status at the casino where when he walks in--or
he or she walks in, you know, everything is paid for, including your
room. So that is the main benefit to a gambler.'' Horner TF Hrg. II at
23.
\426\A marker is a form of credit extended by a casino that enables
the customer to borrow money from the casino. See also Horner TF Hrg.
II at 13.
\427\Judge Porteous became an established player at the following
casinos: (1) Beau Rivage Casino in Biloxi, Mississippi, (2) Caesar's
Palace in Las Vegas, Nevada, (3) Caesar's Tahoe, in Lake Tahoe, Nevada,
(4) Casino Magic in Bay St. Louis, Mississippi, (5) Grand Casino Biloxi
in Biloxi, Mississippi, (6) Isle of Capri in Biloxi, Mississippi, and
(7) Treasure Chest Casino in Kenner, Louisiana. See Porteous Central
Credit Inc. Gaming Report (Ex. 326).
---------------------------------------------------------------------------
An analysis of Judge Porteous's credit card and bank
account records, performed by the FBI, revealed that from 1995
through 2000--while he was a Federal judge--over $130,000 in
gambling charges appeared on his credit card statements:
1995 $ 9,545.08
1996 $ 22,927.48
1997 $ 32,927.48
1998 $ 16,056.84
1999 $ 40,825.62
2000 $ 8,908.90
------------
Total
$131,191.40\428\
---------------------------------------------------------------------------
\428\FBI Credit Card Chart (Ex. 348). At the Fifth Circuit Hearing,
FBI Financial Analyst Gerald Fink testified that the gambling charges
on Judge Porteous's credit cards were $66,051 in gaming charges. Fink
5th Cir. Hrg. at 345-48 (Ex. 332). These same dollar amounts were
presented at the Task Force Hearing. A subsequent review has revealed
that the chart of credit card gambling expenses used at the Fifth
Circuit and the Task Force Hearing failed to include several of Judge
Porteous's credit cards, and that the actual amount of credit card
gambling charges is substantially greater. Agent Horner, at the Task
Force Hearing, testified that the chart he identified, Exhibit 327,
``doesn't include everything. There is probably some additional credit
card charges that were not included in this time period, and there may
be some additional withdrawals out of his bank account that were not
included.'' Horner TF Hrg. II at 9. An updated chart, Exhibit 348,
supplements the chart (Exhibit 327) that was used at the Task Force
Hearing.
Additionally, between January 1997 and June 2000, Judge
Porteous wrote checks or made cash withdrawals from his bank
accounts at casinos totaling at least $27,739.\429\ Thus, Judge
Porteous had incurred at least $150,000 in gambling charges and
related gaming withdrawals in the 5 years preceding his
bankruptcy filing.
---------------------------------------------------------------------------
\429\The June 2000 date was chosen for the purposes of the Fifth
Circuit Hearing because that was the first time Judge Porteous met with
his bankruptcy attorney, Claude Lightfoot.
---------------------------------------------------------------------------
2. Judge Porteous's Financial Condition from 1996 to 2000
From 1996 to 2000, Judge Porteous's financial situation
grew increasingly dire, as follows:
Year-end 1996--Credit card debt in excess of $44,826; IRA
Balance of $59,000. In December 1996--a date as of which nearly
all the known credit card records of Judge Porteous were
obtained--Judge Porteous had about $45,000 in outstanding
credit card debt and an IRA balance of about $59,000. (He had
no stocks or bonds or other significant savings or assets other
than modest equity in his house.)
June of 1997--Credit card debt of $69,000; IRA balance of
$20,000. During the first 6 months of 1997, Judge Porteous's
financial situation deteriorated significantly. During that
period, he made three withdrawals from his IRA account
amounting to $40,000, resulting in his IRA balance falling to
approximately $20,000. His credit card debt increased to
$69,000.
June of 1999--Credit card debt of $103,000; IRA balance of
$9,500. Judge Porteous took additional withdrawals from his IRA
in April 1998 and January 1999. By June 1999 (when Judge
Porteous sought money from Amato on the boat),\430\ Judge
Porteous's credit card debt had increased to approximately
$103,000, while his IRA balance had fallen to approximately
$9,500.
---------------------------------------------------------------------------
\430\See discussion in VIII(I)(3), supra.
---------------------------------------------------------------------------
April 2000--Credit card debt of $153,000; IRA balance of
$12,000. In September 1999, Judge Porteous withdrew another
$1,600 from his IRA (his balance was as low as $7,700 on
September 30, 1999, but the value grew over the next several
months as the value of his securities in that account
increased), but his credit card debt had increased to more than
$150,000.
3. Judge Porteous's False Statements Concealing Liabilities on
Financial Disclosure Reports
On an annual basis, starting with calendar year 1994, Judge
Porteous was required by law to file Financial Disclosure
Reports with the Judicial Conference of the United States.
Part VI of the Financial Disclosure Report required Judge
Porteous to report liabilities by means of a letter code, the
pertinent categories being ``J'' for liabilities of $15,000 or
less, and ``K'' for amounts between $15,001 and $50,000. The
filer is required to list all liabilities to credit card
companies where the balance exceeded $10,000 at the close of
the calendar year for which the Report was filed.\431\
---------------------------------------------------------------------------
\431\Under the Ethics in Government Act of 1978, Federal judges are
required by law to file annual public reports with the Judicial
Conference disclosing certain personal financial information. See 5
U.S.C. app. Sec. Sec. 101(a), 101(b), and 101(f)(11)-(12). Public
financial disclosure was intended ``to deter conflicts of interests
from arising,'' to ``deter some persons who should not be entering
public service from doing so,'' and to subject a judge's financial
circumstances to ``public scrutiny.'' ``By having access to financial
disclosure statements, an interested citizen can evaluate the
official's performance of his duties in light of the official's outside
financial interests.'' See S. Rpt. 95-170, 95th Cong. 1st Sess. 21-22
(1977), Senate Committee on Governmental Affairs, Report to Accompany
S. 555, ``Public Officials Integrity Act of 1977.'' (This Act took the
name ``Ethics in Government Act'' in its final form.)
---------------------------------------------------------------------------
These disclosure requirements were upheld by the United States Court
of Appeals for the Fifth Circuit in Duplantier v. United States, 606
F.2d 654 (5th Cir. 1979). In that case, the Fifth Circuit explained:
While nomination and confirmation procedures no doubt weed
out certain persons who should not serve as Federal judges,
they do nothing to scrutinize the behavior of judges once
confirmed. Congress could legitimately conclude that the
statutory controls mandated by the Act would further the
interest of judicial integrity.
By alerting litigants and the public of a judge's
financial interest, the financial disclosure provisions of
the Act can serve as a check on potential judicial abuse.
Id. at 701. Individuals who have made false statements on Financial
Disclosure Reports have been subject to prosecution under the Federal
criminal laws as a violation of title 18, United States Code, Section
1001 (False and Fraudulent Statements).
Table 6 sets forth the credit card liabilities that Judge
Porteous actually disclosed as compared with the credit card
debts he actually incurred and failed to disclose on his
Financial Disclosure Reports for calendar years 1996 through
2000.\432\
---------------------------------------------------------------------------
\432\Danos testified that Judge Porteous prepared the forms,
including specifying the codes to be used, and she simply typed the
forms for him using the information he provided. Danos Dep. II at 4-5
(Ex. 47).
Judge Porteous's Financial Disclosure Reports are marked as
exhibits as follows: Ex. 102(a) (Financial Disclosure
Report for 1996); Ex. 103(a) (Report for 1997); Ex. 104(a)
(Report for 1998); Ex. 105(a) (Report for 1999), and Ex.
106(a) (Report for 2000). The various credit card
statements for December of the respective calendar years
containing balances that should have been reported are
marked as follows: Ex. 167 (statement for Citibank account
0426 (December 12, 1996)); Ex. 168 (statements for MBNA
accounts 0877 (December 19, 1997) and 1290 (December 4,
1997), and Travelers account 0642 (December 30, 1997)); Ex.
169 (statements for MBNA accounts 0877 (December 19, 1998)
and 1290 (December 4, 1998)); Ex. 170 (statements for
Citibank accounts 0426 (December 10, 1999) and 9138
((December 21, 1999), MBNA accounts 0877 (December 18,
1999) and 1290 (December 4, 1999)); Ex. 171 (statements for
MBNA accounts 0877 (December 20, 2000) and 1290 (December
5, 2000), Citibank accounts 0426 (December 12, 2000) and
9138 (December 21, 2000), Travelers Bank account 0642
(December 29, 2000), and Discover account 9489 in the name
of Carmella G. Porteous (December 25, 2000)).
The reports were signed by Judge Porteous on a signature
line directly below the following certification:
I certify that all information given above (including
information pertaining to my spouse and minor or
dependent children, if any) is accurate, true, and
complete to the best of my knowledge and belief, and
that any information not reported was withheld because
it met applicable statutory provisions permitting non-
disclosure.
Below Judge Porteous's signature is the following additional
warning in capital letters:
NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY
FALSIFIES OR FAILS TO FILE THIS REPORT MAY BE SUBJECT
TO CIVIL AND CRIMINAL SANCTIONS\433\
---------------------------------------------------------------------------
\433\Judge Porteous's Financial Disclosure Report (for calendar
year 1998), filed May 13, 1999 (Ex. 105(a)). That warning cites 5
U.S.C. App. 4, Sec. 104 which provides, in part, that the Attorney
General may bring civil penalty enforcement actions (seeking damages
not to exceed $10,000), against persons who knowingly and willfully
falsify a financial disclosure report. Even though the report does not
cite to the criminal laws, Judge Porteous would have known that a false
statement would also violate Title 18, United States Code, Section 1001
(False Statements) which makes it a crime for an individual ``in any
matter within the jurisdiction of the . . . judicial branch'' to make a
``materially false, fictitious, or fraudulent statement or
representation,'' or make or use ``any false writing or document
knowing the same to contain any materially false, fictitious, or
fraudulent statement or entry.''
Thus, for several years prior to filing for bankruptcy,
Judge Porteous concealed his financial circumstances on
documents where he was legally required to disclose them.
C. The Pre-bankruptcy Workout Period--
July 2000 Through February 2001
In the summer of 2000, Judge Porteous retained attorney
Claude Lightfoot as his bankruptcy counsel. Lightfoot had never
met Judge Porteous prior to representing him.\434\
---------------------------------------------------------------------------
\434\Lightfoot GJ I at 22 (Ex. 120). Lightfoot testified three
times before the grand jury: August 19, 2004 (Lightfoot GJ I),
September 9, 2004 (Lightfoot GJ II), and November 4, 2004 (Lightfoot GJ
III).
---------------------------------------------------------------------------
Lightfoot spent ``considerable time'' with Judge Porteous
and his wife in July and August 2000,\435\ working to compile
documentation on their assets and debts and to develop a
workout proposal for the creditors in an effort to avoid a
bankruptcy filing.\436\ Lightfoot also told Judge Porteous not
to incur any new debts and provided Judge Porteous general
information describing Chapter 13 bankruptcies.\437\
---------------------------------------------------------------------------
\435\In August 2000, even as Judge Porteous was consulting with
Lightfoot for the purpose of attempting a workout of his debts, he
requested a credit limit increase at the Treasure Chest Casino from
$2,500 to $3,000. See Porteous Central Credit Inc. Gaming Report (Ex.
326). Judge Porteous did not disclose this fact to Lightfoot.
\436\Lightfoot Affidavit in Support of Attorney's Fees at 1, Docket
No. 18, In the Matter of Porteous, Case No. 01-12363, (Bankr. E.D. La.)
(hereinafter ``Lightfoot Affidavit and Invoice'') (Ex. 342). During the
workout process, Lightfoot analyzed Judge Porteous's assets and debts
and came up with a plan to offer at least a partial payment to Judge
Porteous's creditors for all of Judge Porteous's credit card debt of
which Lightfoot was aware. Lightfoot TF Hrg. II at 87.
\437\Lightfoot Dep. at 14-15 (Ex. 123); Lightfoot TF Hrg. II at 42.
---------------------------------------------------------------------------
During the early months of his engagement with Judge
Porteous, Lightfoot gave Judge Porteous worksheets to fill
out.\438\ Lightfoot specifically explained to Judge Porteous
that he needed to disclose all of his assets and all of his
debts.\439\ Lightfoot believed that the worksheets may have
been filled out before he met with Judge Porteous on July 20,
2000, and that Judge Porteous personally filled out the
worksheets because, for example, only Judge Porteous's Social
Security number was initially filled in on the worksheets, and
not Mrs. Porteous's.\440\
---------------------------------------------------------------------------
\438\Lightfoot Dep. at 3 (Ex. 123). Lightfoot's worksheets
contained ``every single question that appears in the petition, the
schedules and the statements and the Chapter 13 plan. . . . [I]t
contains everything that would ultimately be contained in a bankruptcy
filing.'' Lightfoot TF Hrg. II at 42.
\439\Lightfoot TF Hrg. II at 42.
\440\Lightfoot GJ III at 36-37 (Ex. 122).
---------------------------------------------------------------------------
Judge Porteous also provided Lightfoot with a ``big pile of
invoices,'' bills, and credit card statements.\441\ Included
among these documents was Judge Porteous's pay stub from the
period ending May 31, 2000, which showed Judge Porteous's net
monthly income to be $7,531.52.\442\
---------------------------------------------------------------------------
\441\Lightfoot GJ I at 39 (Ex. 120).
\442\Judge Porteous never provided Lightfoot with an updated pay
stub closer to the date of the bankruptcy filing in March 2001, nor did
he provide any other information indicating that his salary increased
in 2001. Lightfoot Dep. at 4 (Ex. 123).
---------------------------------------------------------------------------
Lightfoot spent considerable time preparing an analysis of
Judge Porteous's debts and collecting all relevant documents
that creditors would need to review when considering whether
the workout proposal was a fair settlement.\443\ Finally, on
December 21, 2000, Lightfoot sent Judge Porteous a copy of the
workout letters that had been sent to all of Judge Porteous's
unsecured creditors, ``with the exception of [a $5,000 loan
from] Regions Bank which we wanted to exclude.\444\'' The
workout letters listed thirteen debts owed to ten different
creditors, totaling $182,330.23.\445\
---------------------------------------------------------------------------
\443\Lightfoot GJ I at 54 (Ex. 120).
\444\December 21, 2000 Letter from Lightfoot to the Porteouses (Ex.
146).
\445\December 21, 2000 Letter from Lightfoot to the Porteouses (Ex.
146). Five days after Lightfoot sent Judge Porteous the workout
letters, Judge Porteous traveled to Caesars Lake Tahoe and took out a
$3,000 marker. (Ex. 380). Judge Porteous did not disclose to Lightfoot
this gambling trip or the $3,000 extension of credit.
---------------------------------------------------------------------------
During the entire period that Lightfoot represented Judge
Porteous in connection with his bankruptcy, Judge Porteous
never told Lightfoot that he had any gambling debt. Lightfoot
has been consistent in his testimony at every forum--the grand
jury, the Fifth Circuit, the Task Force Deposition, and the
Task Force Hearing--that at all times he was unaware of Judge
Porteous's gambling.\446\ At the Task Force Hearing, in
response to questioning by Mr. Goodlatte, Lightfoot testified:
``I didn't know [Judge Porteous] gambled . . .
whatsoever.''\447\ At the Fifth Circuit Hearing, Chief Judge
Jones pressed Lightfoot on this point:
---------------------------------------------------------------------------
\446\Lightfoot Dep. at 9 (Ex. 123); Lightfoot 5th Cir. Hrg. at 446
(Ex. 124); Lightfoot TF Hrg. II at 43.
\447\Lightfoot TF Hrg. II at 65.
Q. LAnd you're telling us, as his counsel, in whom he
confided for months and months before the time that he
was--that he filed this petition, when he continued to
gamble almost every week before and after he filed
bankruptcy, that you had no earthly idea that this was
---------------------------------------------------------------------------
because of gambling?
A. LI didn't. I never knew him before, and I--I really
didn't know that gambling was an issue with the
judge.\448\
---------------------------------------------------------------------------
\448\Lightfoot 5th Cir. Hrg. at 453 (Ex. 124).
---------------------------------------------------------------------------
D. Judge Porteous's Conduct Between the End of the Workout (February
2001) and Filing for Bankruptcy (March 28, 2001)
In about February 2001, Lightfoot concluded that the
proposed workout would not succeed, and he turned his attention
toward preparing a bankruptcy filing for Judge Porteous. From
February 2001 to the filing of the initial bankruptcy petition
on March 28, 2001, Judge Porteous committed a series of acts
that have particular significance in connection with the
bankruptcy forms he subsequently signed under oath. These acts
reflect his intent to conceal certain of his debts,
particularly his gambling debts, in violation of applicable
bankruptcy law requiring the disclosure of such liabilities.
1. Treasure Chest Markers
On March 2, 2001, Judge Porteous's credit limit at the
Treasure Chest Casino (``Treasure Chest'') was increased from
$3,000 to $4,000.\449\ Also on that day Judge Porteous gambled
at Treasure Chest and took out seven $500 markers. He repaid
four markers in chips that same day but left the casino owing
$1,500.\450\
---------------------------------------------------------------------------
\449\Treasure Chest Records (Ex. 331).
\450\Treasure Chest Customer Transaction Inquiry (Ex. 302).
---------------------------------------------------------------------------
On March 27, 2001, the day prior to filing for bankruptcy,
Judge Porteous made a cash payment of $1,500 to Treasure Chest,
repaying the three markers that had been outstanding since
March 2, 2001.\451\ Judge Porteous thus made certain that he
had no unsecured debts to Treasure Chest as of the date he
filed for bankruptcy.
---------------------------------------------------------------------------
\451\Treasure Chest Customer Transaction Inquiry (Ex. 302). Judge
Porteous's payment of these markers on March 27, 2001 in order that
they would not be included on the bankruptcy schedules also reflect his
understanding that markers were a form of unsecured debt.
---------------------------------------------------------------------------
2. The Fleet Credit Card
Carmella Porteous had a Fleet credit card issued in her
name. In the few months prior to March 2001, partial payments
had been made to keep that account current and in good
standing. Thus, the balance on the account's January 17, 2001
closing date was $1,144, on which $315 was paid in February.
The February closing balance was over $1,250, on which a $370
payment was made on March 5, 2001.
On March 19, 2001, a Fleet statement was issued showing a
new balance of $1,088.41. Payment on the account was due April
15, 2001. Nonetheless, just a few days after the closing date,
Judge Porteous directed his secretary Rhonda Danos to pay off
this credit card in full. On March 23, 2001, Danos wrote a
check drawn on her personal account in the amount of $1,088.41
to Fleet, indicating in the memo line that the payment was for
the Carmella Porteous account.\452\ The Fleet card was not used
to make any charges from March 5, 2001 (three weeks prior to
filing for bankruptcy), to April 7, 2001 (about 10 days after
the bankruptcy petition was filed).\453\
---------------------------------------------------------------------------
\452\Fleet statement and Danos check number 1660 in the amount of
$1,088.41 (Ex. 329).
\453\Judge Porteous's handling of this payment to Fleet
demonstrates his knowledge of the bankruptcy process and his
determination that Fleet not be included as an unsecured creditor.
First, it was not Judge Porteous's practice to pay off credit cards
early and in full. Second, though he did not have funds in his accounts
to make the Fleet payment (he had only $559.07 in his main checking
account on the date Danos wrote the $1,088.41 check to Fleet), he could
have easily waited until April 1, 2001, when he would receive his
monthly salary check in excess of $7,500. Instead, he had Danos pay it
a few days prior to his filing for bankruptcy. (Also, by having Danos
pay the Fleet card, if creditors were subsequently to insist on
examining Judge Porteous's accounts in the month prior to bankruptcy,
the check to Fleet would not be signed by Judge Porteous, and Judge
Porteous's personal involvement in hiding this card from the creditors
would not be apparent.) Third, the 5-week gap in any charges on the
card was inconsistent with the card's prior usage pattern, but can be
explained by Judge Porteous's desire to be certain there was no debt
outstanding on the date of the filing for bankruptcy. Finally, the
concealed payment on the concealed account occurred 3 days after Judge
Porteous obtained a P.O. Box to hide his actual residential address at
a time when he was structuring (and concealing) his activities with his
bankruptcy filing in mind.
---------------------------------------------------------------------------
3. Grand Casino Gulfport Markers
On February 27, 2001, Judge Porteous gambled at the Grand
Casino Gulfport (``Gulfport'') and took out two $1,000 markers.
Had they been outstanding on the date Judge Porteous filed for
bankruptcy, the debt to the casino would have had to be
disclosed on the schedule of unsecured creditors that would be
filed as part of the bankruptcy process. (And, as will be
discussed, if Judge Porteous paid the debt within 90 days of
filing for bankruptcy, that payment would be required to be
disclosed on his Statement of Financial Affairs, one of the
official forms that must be filed in a bankruptcy case.)
Gulfport records reflect that the casino attempted to
deposit and collect on these markers starting March 16, 2001--
which would have been prior to the bankruptcy filing--but the
markers were returned as ``uncollected.''\454\ FBI Agent Horner
determined that there was a problem with Judge Porteous's bank
routing number on the markers.
---------------------------------------------------------------------------
\454\Grand Casino Gulfport Patron Transaction Report (Ex. 301(a)).
---------------------------------------------------------------------------
On March 27, 2001--the day prior to filing his initial
bankruptcy petition, and the same day he paid off his Treasure
Chest markers--Judge Porteous deposited exactly $2,000 into his
Bank One account.\455\ This amount consisted of $1,960 cash and
a check he drew on his Fidelity money market account of $40--
thus ensuring that there be a $2,000 in that account.\456\
Without this deposit, there would not have been $2,000 to pay
the markers. This $2,000 deposit into an account from which
Judge Porteous knew a $2,000 debt was to be collected
demonstrates Judge Porteous's awareness that the Gulfport
markers were outstanding as of March 27.\457\
---------------------------------------------------------------------------
\455\Porteous Bank One Records (Ex. 144).
\456\Porteous Fidelity Money Market Statement (Ex. 143).
\457\No other debt has been uncovered which would require that
there be at least $2,000 in Judge Porteous's bank account for the 3
days prior to his anticipated receipt of his salary deposit.
---------------------------------------------------------------------------
Gulfport records reflect that the casino ultimately
redeposited the markers for collection on March 24, 2001 (a
fact, which if known to Judge Porteous, would explain his
$2,000 deposit), and the markers cleared Judge Porteous's bank
account on April 5 and 6, 2001, a week after he filed for
bankruptcy.\458\
---------------------------------------------------------------------------
\458\See Porteous Bankruptcy Schedules (Ex. 127); Grand Casino
Gulfport Patron Transaction Report (Ex. 301(a)); Bank One Account
Summary (Ex. 301(b)).
---------------------------------------------------------------------------
Despite Judge Porteous's efforts to have these markers paid
off pre-bankruptcy, the markers were in fact pending on March
28, 2001 when he filed.
4. Obtaining a Post Office Box
On March 20, 2001, Judge Porteous opened a Post Office Box
for the explicit purpose of using that address, along with a
false name in his bankruptcy filing, instead of using his home
address.\459\
---------------------------------------------------------------------------
\459\Porteous PO Box Application (Ex. 145).
---------------------------------------------------------------------------
5. Filing a Tax Return for Calendar Year 2000
On March 23, 2001 (the same date Danos wrote the check to
Fleet), the Porteouses signed their income tax return for 2000
and claimed a tax refund in the amount of $4,143.72.\460\
---------------------------------------------------------------------------
\460\2000 Porteous Tax Return (Ex. 141).
---------------------------------------------------------------------------
Judge Porteous did not disclose to Lightfoot his activities
associated with the Gulfport and Treasure Chest markers, the
Fleet payment, or his filing for a tax refund. As described in
(E) below, Judge Porteous further failed to disclose these
activities when he signed forms and schedules under oath in
connection with his bankruptcy.
E. March 28, 2001--Judge Porteous's Initial Bankruptcy Petition Filed
under a False Name
On March 28, 2001, Judge Porteous filed a Petition for
Chapter 13 bankruptcy (the ``Initial Petition'') in the United
States Bankruptcy Court for the Eastern District of
Louisiana.\461\ While the Initial Petition contained a list of
creditors, it did not contain financial schedules or other
detailed financial information. Those documents were
subsequently filed on April 9, 2001.
---------------------------------------------------------------------------
\461\Porteous Initial Chapter 13 Bankruptcy Petition, Docket No. 1,
In the Matter of Porteous, Case No. 01-12363 (Bankr. E.D. La. Mar. 28,
2001) (hereinafter ``Initial Petition'') (Ex. 125). During his
testimony before the Impeachment Task Force, the Honorable Duncan Keir,
Chief Judge of the United States Bankruptcy Court for the District of
Maryland, described Chapter 13 bankruptcies as wage earners' plans, in
that they are only available to individuals who are receiving a monthly
income. There is no liquidation in a Chapter 13, and a debtor is
therefore allowed to keep his property. In exchange for that
opportunity, debtors must provide the bankruptcy trustee ``with at
least as much in value as they would have received had it been a
liquidating Chapter 7 bankruptcy.'' Keir TF Hrg. II at 68.
---------------------------------------------------------------------------
This Initial Petition was filed with the false names ``G.T.
Ortous'' and ``C.A. Ortous'' as debtors and also listed a newly
obtained P.O. Box address instead of Judge Porteous's actual
residential address. Judge Porteous personally reviewed the
Initial Petition before it was filed,\462\ and both he and his
wife signed the Initial Petition ``under penalty of perjury
that the information provided in this petition is true and
correct.''\463\
---------------------------------------------------------------------------
\462\Lightfoot TF Hrg. II at 44.
\463\Initial Petition (Ex. 125). Lightfoot had no doubt that the
Porteouses understood that they were signing a document containing
false information when they signed the Initial Petition. Lightfoot GJ
III at 31 (Ex. 122).
---------------------------------------------------------------------------
Judge Porteous admitted at the Fifth Circuit Hearing that
the names used the Initial Petition were false.
Q. LYour name is not Ortous, is it?
A. LNo, sir.
Q. LYour wife's name is not Ortous?
A. LNo, sir.
Q. LSo, those statements that were signed--so, this
petition that was signed under penalty of perjury had
false information, correct?
A. LYes, sir, it appears to.\464\
---------------------------------------------------------------------------
\464\Porteous 5th Cir. Hrg. at 55 (Ex. 10). Federal Rule of
Bankruptcy 1005 requires that the caption of a bankruptcy petition
include the name of the debtor and ``all other names used by the debtor
within 6 years before filing the petition.'' Fed. R. Br. P. 1005
(2001). Accuracy in the caption of the petition is not merely a matter
of form. ``It is of substantive importance since it informs the
creditor of exactly who the debtor is in order that the creditor may
have an opportunity to determine whether it has a claim against the
estate.'' In re Anderson, 159 B.R. 830, 838-39 (Bankr. N.D. Ill. 1993);
accord In re Adair, 212 B.R. 171 (Bankr. N.D. Ga. 1997).
While Judge Porteous admitted that he filed his initial
bankruptcy petition with a false name, Lightfoot has taken
responsibility for coming up with that idea.\465\ Lightfoot has
since characterized the use of false names as a ``stupid
idea,''\466\ and he explained in his Task Force testimony that
his goal in filing the Initial Petition with the false names
was to avoid embarrassment to Judge Porteous:
---------------------------------------------------------------------------
\465\Lightfoot 5th Cir. Hrg. at 435 (Ex. 124).
\466\Lightfoot 5th Cir. Hrg. at 435 (Ex. 124).
I had hoped that I could avoid him the embarrassment--
or have him avoid the embarrassment of a big story in
the newspaper. At that time, these filings were listed
in the newspaper once a week. And I knew that it would
be corrected very quickly before any notice would go
out to creditors. And that was a mistake, and it was my
suggestion, and I am sorry that I made that
suggestion.\467\
---------------------------------------------------------------------------
\467\Lightfoot TF Hrg. II at 44.
Lightfoot acknowledged that Judge Porteous may have said
something about not wanting his bankruptcy to be in the
paper.\468\ While it was Lightfoot's idea to use a false name,
Judge Porteous never objected and never refused to file a
document under oath representing he was ``G.T. Ortous.''\469\
---------------------------------------------------------------------------
\468\Lightfoot GJ III at 23-24, 26 (Ex. 122).
\469\Lightfoot testified:
Q. After you made the suggestion to Judge Porteous that he
file under a false name in the original petition, did he
---------------------------------------------------------------------------
object to your suggestion?
A. No.
Q. Did he ever say to you, no, I refuse to file a document
with a false name?A.No.
Lightfoot TF Hrg. II at 44.
F. April 9, 2001--Judge Porteous's Amended Petition, Accompanying
Schedules, and Statement of Financial Affairs
1. The Amended Petition
Judge Porteous amended his Initial Petition on April 9,
2001, 2 weeks after it was filed, correcting the false names
and listing his actual residential address in Metairie,
Louisiana.\470\ The Amended Petition did not list Judge
Porteous's newly acquired PO Box under either the ``street
address'' field or the ``mailing address'' field.\471\
---------------------------------------------------------------------------
\470\Porteous Amended Chapter 13 Bankruptcy Petition, Docket No. 2,
In the Matter of Porteous, Case No. 01-12363 (Bankr. E.D. La. Apr. 9,
2001) (hereinafter ``Amended Petition'') (Ex. 126).
\471\Judge Porteous identified his Amended Petition during his
testimony before the Fifth Circuit Special Committee. Porteous 5th Cir.
Hrg. at 56-57 (Ex. 10).
---------------------------------------------------------------------------
2. The Bankruptcy Schedules and Statement of Financial Affairs
Along with the Amended Petition, Judge Porteous filed two
other documents. The first consisted of schedules setting forth
such items as assets (for example, real and personal property,
and property claimed as exempt), debts (secured and unsecured
creditors), income, and other miscellaneous financial matters.
The second, entitled ``Statement of Financial Affairs,''
consisted of a series of questions requiring disclosure of
specific financial activities. Judge Porteous signed each
document under penalty of perjury.\472\ Though they were filed
April 9, 2001, these forms should have described Judge
Porteous's financial affairs as they existed on the date of the
Initial Petition--the date which determines the bankruptcy
``estate.''
---------------------------------------------------------------------------
\472\Porteous Chapter 13 Schedules [``Bankruptcy Schedules''] and
Statement of Financial Affairs, Docket No. 3, In the Matter of
Porteous, Case No. 01-12363 (Bankr. E.D. La. Apr. 9, 2001) (Ex. 127).
---------------------------------------------------------------------------
Prior to filing these documents, Lightfoot provided Judge
Porteous with draft copies and specifically reviewed them with
Judge Porteous at least twice.\473\ The final review took place
within 1 week of the Initial Petition's filing.\474\ Judge
Porteous then signed both his Bankruptcy Schedules and his
Statement of Financial Affairs under penalty of perjury,
declaring that the documents were true and correct.\475\
---------------------------------------------------------------------------
\473\Lightfoot TF Hrg. II at 46. As Lightfoot explained in his Task
Force testimony: ``[I] would sit down, and I believe with his wife at
one time as well, and we went through them to see that everything was
accurate and there were no changes, just going page by page, pointing
out what was there.'' Id.
\474\Lightfoot Dep. at 5-6 (Ex. 123).
\475\Bankruptcy Schedules at SC00111, SC00116 (Ex. 127).
---------------------------------------------------------------------------
3. False Representations in the Bankruptcy Schedules
a. The Tax Refund
Category 17 on Schedule B (``Personal Property'') of the
Bankruptcy Schedules required Judge Porteous to disclose
``other liquidated debts owing debtor including tax
refunds.''\476\ In response to Category 17, the box ``none'' is
checked.\477\
---------------------------------------------------------------------------
\476\The instructions for completing Category 17 on Schedule B
state that ``Item 17 request [sic] the debtor to list all monies owed
to the debtor . . . and specifically, any expected tax refunds.''
Instructions for Completing Official Form 6, Schedules at 62 (Ex. 345).
\477\Bankruptcy Schedules at SC00096 (Ex. 127). During his Fifth
Circuit testimony, Judge Porteous acknowledged that he checked ``none''
in response to this question. Porteous 5th Cir. Hrg. at 80 (Ex. 10).
The decision to check ``none'' was Judge Porteous's decision--not
Lightfoot's. Lightfoot 5th Cir. Hrg. at 451 (Ex. 124).
---------------------------------------------------------------------------
However, on March 23, 2001--5 days before he filed his
Initial Petition and seventeen days before he filed his
Bankruptcy Schedules--Judge Porteous filed his calendar year
2000 Federal income tax return and requested a $4,143.72 tax
refund.\478\ And on April 13, 2001--just 4 days after the
Bankruptcy Schedules were filed--Judge Porteous received his
entire $4,143.72 Federal tax refund by way of a direct deposit
into his Bank One checking account.\479\
---------------------------------------------------------------------------
\478\2000 Porteous Federal Tax Return (Ex. 141).
\479\Porteous Bank One records (Ex. 144). Bankruptcy Trustee S.J.
Beaulieu told the FBI during an interview in 2004 that the Porteouses
should have disclosed any tax refund to Beaulieu, and Beaulieu would
have then required the Porteouses to turn over the refund so that it
could be distributed to the unsecured creditors. Beaulieu FBI
Interview, Jan. 22, 2004, at SC00410 (Ex. 334). Judge Porteous
acknowledged during his Fifth Circuit testimony that the $4,143.72 tax
refund was deposited into his Bank One checking account on April 13,
2001. Porteous 5th Cir. Hrg. at 82-83 (Ex. 10).
---------------------------------------------------------------------------
At the Fifth Circuit Hearing, Judge Porteous was shown the
return and identified it as having been filed on March 23,
2001. When confronted with the fact that the Schedule did not
disclose the pending refund, Judge Porteous responded: ``When
that was listed, you're right.''\480\
---------------------------------------------------------------------------
\480\Porteous 5th Cir. Hrg. at 81-82 (Ex. 10).
---------------------------------------------------------------------------
At one point in his Fifth Circuit testimony, Judge Porteous
claimed that he called Lightfoot when he received the refund,
and that they discussed what he should do with it:
Q. LWhat did Mr. Lightfoot tell you?
A. LSaid, ``If the trustee didn't put a lien on it, put
it in your account; but they may--they may ask for it
back.''
Q. LBut, Judge Porteous, that schedule was signed under
penalty of perjury.
A. LIt was omitted. I don't know how it got omitted.
There was no intentional act to try and defraud
somebody. It just got omitted. I don't know why.\481\
---------------------------------------------------------------------------
\481\Porteous 5th Cir. Hrg. at 83-84 (Ex. 10).
Lightfoot, however, testified before the Task Force that
Judge Porteous never told him about the year 2000 tax
refund.\482\ In response to Judge Porteous's statement that he
talked about the refund with Lightfoot after he received it,
Lightfoot testified that he had a conversation with Judge
Porteous in relation to Judge Porteous's receipt of a different
tax refund in a subsequent year. Lightfoot testified he
specifically recalled the issue in that conversation being
whether the ``special confirmation order we received from the
Houston [bankruptcy judge]'' required that the refund be
disclosed or turned over, and that to answer Judge Porteous's
question, it would be necessary to ``look at [the] confirmation
order'' since it was not a typical order issued in New
Orleans.\483\ The confirmation order in Judge Porteous's case
was issued June 28, 2001. As of the date Judge Porteous
received the refund (April 13, 2001) the order had not yet been
issued. Therefore, the conversation that Lightfoot had with
Judge Porteous about whether the order required disclosure of
the refund could not have taken place in reference to the 2000
tax refund.
---------------------------------------------------------------------------
\482\Lightfoot TF Hrg. II at 46.
\483\Lightfoot Dep. at 19 (Ex. 123).
---------------------------------------------------------------------------
Further, Lightfoot testified he viewed the existence of the
refund as significant and he stated that if he had known about
it, he would have disclosed it to the bankruptcy trustee:
I would have amended this schedule to list it, had it
been absent, and probably informed the trustee,
particularly if the meeting of creditors hadn't been
held yet. I would have mentioned it.\484\
---------------------------------------------------------------------------
\484\Lightfoot TF Hrg. II at 47. See also Lightfoot Dep. at 18 (``I
would have felt the requirement, the obligation on my part to amend the
schedules, to list an expected tax refund as the questions read, and I
would have informed the trustee at the upcoming meeting of
creditors.'') (Ex. 123).
According to Lightfoot, a tax refund is an asset and ``[i]f you
have a liquidated refund owing to you at the time you file, it
should be listed.''\485\
---------------------------------------------------------------------------
\485\Lightfoot 5th Cir. Hrg. at 447 (Ex. 124); see also Lightfoot
TF Hrg. II at 46. Chief Judge Keir also explained that ``liquidated''
in this context means the tax refund is an amount certain--it does not
mean that the amount has already been collected. According to Judge
Keir, ``[a] tax refund that has been determined or at least initially
determined by the tax return is a liquidated amount.'' Keir TF Hrg. II
at 70. Judge Keir also made the point that the undisclosed tax refund
had significance going forward in determining Judge Porteous's
disposable income: ``Not only was it an asset that should have come in
. . . but in effect it affects the calculation of what is disposable
income. If you claim no dependents, no deductions, and have them take
out extra money, you can lower that take-home pay. All you are doing is
putting it in your own savings account, if you are allowed to do that.
Therefore, your monthly payment is also going to be less under this
plan calculation.'' Keir TF Hrg. at 77.
---------------------------------------------------------------------------
b. Omitted and Undervalued Financial Accounts
The Bankruptcy Schedules were also inaccurate as to two of
Judge Porteous's accounts.
Question 2 on Schedule B (``Personal Property'') requires
the debtor to list, among other things, ``checking, savings or
other financial accounts.'' In response, the current market
value of Judge Porteous's Bank One Checking Account--into which
his monthly salary was deposited--was listed as $100.\486\
However, the opening balance in Judge Porteous's Bank One
account for the time period of March 23, 2001 to April 23, 2001
was $559.07, and the closing balance for the same time period
was $5,493.91. Indeed, the day prior to filing his Initial
Petition, Judge Porteous had deposited $2,000 into the
account--the amount he owed on the Gulfport markers--so he knew
that the account held at least that amount. At no time during
that month did Judge Porteous's balance drop to as low as
$100.\487\
---------------------------------------------------------------------------
\486\Bankruptcy Schedules at SC00095 (Ex. 127). During his Fifth
Circuit testimony, Judge Porteous acknowledged that he listed his Bank
One checking account under Schedule B as having a balance of $100.
Porteous 5th Cir. Hrg. at 79-80 (Ex. 10).
\487\Porteous Bank One Records (Ex. 144). Lightfoot testified that
he asked Judge Porteous on April 9, 2001 how much money Judge Porteous
had in his Bank One account, and Judge Porteous told Lightfoot that he
had ``about $100.'' Lightfoot GJ III at 43. (Ex. 122).
---------------------------------------------------------------------------
Judge Porteous also omitted a Fidelity money market account
entirely from Category 2 on Schedule B. This account was held
in both his and his wife's names, and was an active account of
Judge Porteous. Judge Porteous never told Lightfoot about this
account, and did not include it on the worksheets that he
filled out for Lightfoot in the summer of 2000.\488\ As
Lightfoot testified: ``I asked for all bank accounts, and this
[the disclosed accounts] is what I got. I was never told there
were others.''\489\ Judge Porteous acknowledged the existence
of his Fidelity money market account, and acknowledged that it
was omitted from his Schedule B, during his Fifth Circuit
testimony.\490\
---------------------------------------------------------------------------
\488\Lightfoot 5th Cir. Hrg. at 436, 448 (Ex. 124).
\489\Lightfoot GJ III at 45 (Ex. 122).
\490\Porteous 5th Cir. Hrg. at 85-87 (Ex. 10).
---------------------------------------------------------------------------
The Fidelity money market account was an active account
used by Judge Porteous for transactions outside his personal
checking account. He would deposit into the account withdrawals
from his IRA account, travel reimbursements, insurance checks,
cash, and other miscellaneous items. He used the funds for a
variety of purposes, including the payment of gambling debts.
For example, on November 27, 2000, Judge Porteous deposited
$2,400 that he withdrew from his IRA into that account, and on
November 30, 2000, he wrote a check on that account for $1,600
to the Treasure Chest Casino.\491\ On occasion, he would move
money from his main checking account (the Bank One account,
into which his salary checks were deposited) to the Fidelity
money market account and then write checks from the latter
account. The checks drawn on this account also included checks
to Danos that appeared to constitute Judge Porteous's repayment
to her for payments she made on his behalf.
---------------------------------------------------------------------------
\491\Judge Porteous deposited each of the following withdrawals
from his IRA into his Fidelity money market account: January 22, 1997
($12,000); April 30, 1997 ($12,000); April 6, 1998 ($7,200); January
19, 1999 ($2,000); September 27, 1999 ($1,600); May 12, 2000 ($2,400);
and November 21, 2000 ($2,400) (Ex. 383).
---------------------------------------------------------------------------
Moreover, Judge Porteous had used the Fidelity money market
account in the time frame immediately surrounding his filing
for bankruptcy.\492\ By omitting the Fidelity money market
account, Judge Porteous kept a bank account available for his
own use while in bankruptcy that was outside the knowledge of,
and thus the potential scrutiny of, creditors.
---------------------------------------------------------------------------
\492\Porteous Fidelity Statement (Ex. 143). The Fidelity statement
that was issued to Judge Porteous immediately prior to his filing the
original bankruptcy petition was dated March 20, 2001, and showed a
balance of over $600. There was some activity on the account, dropping
the balance down to $283.42 on March 28, 2001. On April 4, Judge
Porteous deposited another $200 into the account. Judge Porteous knew
about this money market account, having written five checks on this
account between March 22, 2001 and April 12, 2001, including a check in
the amount of $40 which he deposited into his Bank One account on March
27, 2001--the day prior to filing for bankruptcy. Moreover, the account
was similarly active and used for the same purposes in the summer of
2000, at the time when Judge Porteous should have disclosed it to
Lightfoot. Judge Porteous deposited $2,400 into that account on May 12,
2000, leaving and ending balance that month of $2,456.33, and, after
some transactions the next month, a balance on June 20, 2000 of
$2,055.43.
---------------------------------------------------------------------------
c. Understated Income
Schedule I of the Bankruptcy Schedules, ``Current Income of
Individual Debtor(s),'' required Judge Porteous to list his
``current monthly gross wages, salary, and commissions (pro
rate if not paid monthly).'' On that schedule, Judge Porteous's
monthly gross income was listed as $7,531.52, the amount that
was reflected on the pay stub Judge Porteous gave Lightfoot
when he first retained him in the summer of 2000.\493\ That
amount listed was in fact Judge Porteous's net salary for that
month (not gross as called for by the Schedule), and the pay
stub was attached to the Schedule. In 2001, Judge Porteous's
net judicial salary had increased to $7,705.51 per month.\494\
Judge Porteous's net income, therefore, was understated by
$173.99 a month, or $2,087.88 annually, or over $6,000 for the
3 year life of the proposed Plan.\495\
---------------------------------------------------------------------------
\493\Bankruptcy Schedules at SC00108-09 (Ex. 127).
\494\Porteous Bank One Records (Ex. 144). Judge Porteous never
disclosed to his bankruptcy attorney that his judicial salary had
increased in 2001. Lightfoot TF Hrg. II at 47. Schedule I was
improperly filled out because Judge Porteous's gross income, even
according to his attached May 31, 2000 pay stub, was $11,775, and his
net (not gross) income was $7,531.52. Nonetheless, the form was
prepared by Lightfoot and the pay stub was attached.
\495\Moreover, even as a ``net'' amount, the $7,531 was misleading.
Judge Porteous had Social Security taxes withheld from his salary until
he reached a statutorily defined annual gross salary--referred to as
the Social Security ``wage base''--a level he typically reached in July
of a calendar year. At that point, he was no longer subject to Social
Security tax withholding, and his net monthly salary would increase
several hundred dollars. Judge Porteous had experienced this pattern
for years. In 1999, when the Social Security wage base was $72,600,
Judge Porteous's net monthly salary increased from approximately $7,350
on June 1 to $8,052 by August, where it stayed for the rest of the
year. In 2000, when the Social Security wage base was $76,200, Judge
Porteous's salary increased from $7,531 on June 1 to $8,253 on August
1, where it likewise remained for the rest of the year.
---------------------------------------------------------------------------
The same pattern would hold for 2001. As noted, Judge Porteous
received $7,705 per month through June 1, 2001 (though he reported only
$7,531 to the bankruptcy court). His monthly net salary increased to
$7,875 on July 2, 2001, and thereafter increased to a range between
$8,555 through $8,592 for the rest of the year--roughly $1,000 per
month more than he reported on his Schedule I, or over $5,000 more for
that year. See also Horner TF Hrg. II at 26 (testifying that from
``August through December [2001], the pay that is deposited in his
account every month is about $8,500'').
Schedule I specifically contemplated the possibility that a wage-
earner in bankruptcy may anticipate a salary increase, and, to ensure
that all disposable income is actually paid to creditors, specifically
inquires at the bottom of Schedule I: ``Describe any increase or
decrease of more than 10% in any of the above categories anticipated to
occur within the year following the filing of this document.'' In the
response for Judge Porteous, the word ``NONE'' is typed. Judge
Porteous's net monthly salary did in fact go up more than 10%. Thus,
Judge Porteous in fact enjoyed thousands of dollars a year in
undisclosed disposable income that would otherwise have been available
to pay his creditors--income that was significantly in excess of the
$7,531.52 that was disclosed on Schedule I as his monthly income.
d. Schedule of Unsecured Creditors
Notwithstanding Judge Porteous's pre-bankruptcy efforts to
ensure there would be no outstanding casino markers on the date
of filing his Initial Petition, Judge Porteous in fact owed
$2,000 in outstanding markers to the Grand Casino Gulfport on
March 28, 2001. Though he listed numerous creditors on Schedule
F, ``Creditors Holding Unsecured Nonpriority Claims,'' this
casino debt was not included. Once again, this was a gambling-
related matter as to which Lightfoot was unaware. As Lightfoot
testified:
Q. LDid Judge Porteous tell you more specifically that
on February 27th of 2001 he gambled at the Grand Casino
Gulfport, he took out $2,000 in markers and that he
left the casino that day still owing $2,000?
A. LNo. I never knew that he gambled at all or had any
gambling debts.
Q. LDid he ever tell you that he owed $2,000 to the
Grand Casino Gulfport on March 28th, which was the day
that he filed the bankruptcy petition?
A. LNo.
Q. LShould Judge Porteous have told you about those
sorts of gambling debts?
A. LYes, so I could list them.\496\
---------------------------------------------------------------------------
\496\Lightfoot TF Hrg. II at 43. It was clear to Lightfoot that a
marker was a form of debt that had to be reported. He explained, ``I
have had some cases involving gambling, people who had markers, and, of
course, they are a civil liability. It is a debt like any other debt in
that sense. So it has to be listed. I would have listed and do list
anybody who has a casino-type debt.'' Lightfoot TF Hrg. II at 53.
Gulfport collected on these markers on or about April 5-6,
2001.\497\
---------------------------------------------------------------------------
\497\Ex. 144.
---------------------------------------------------------------------------
e. Signed Declaration
At the end of Judge Porteous's Bankruptcy Schedules, he
signed a ``declaration under penalty of perjury by individual
debtor,'' which stated:
I declare under penalty of perjury that I have read the
foregoing summary and schedules, consisting of 18 sheets plus
the summary page, and that they are true and correct to the
best of my knowledge, information, and belief.\498\
---------------------------------------------------------------------------
\498\Bankruptcy Schedules at SC00111 (Ex. 127).
---------------------------------------------------------------------------
4. Statement of Financial Affairs
Judge Porteous's April 9, 2001 Statement of Financial
Affairs likewise contained false information by failing to
report the Fleet payment and the payment of certain gambling
debts within 90 days of his filing the Initial Petition.
a. Payments to Creditors (Fleet and the Casinos) Within 90
Days of Filing for Bankruptcy
Question 3 on the Statement of Financial Affairs required
Judge Porteous to ``[l]ist all payments on loans, installment
purchases of goods or services, and other debts, aggregating
more than $600 to any creditor, made within 90 days immediately
preceding the commencement of this case.'' The question
thereafter provided fields for the debtor to list the name and
address of any creditor, the dates of payments, the amount
paid, and the amount still owing.\499\
---------------------------------------------------------------------------
\499\Statement of Financial Affairs at SC00112 (Ex. 127). The
question thus seeks to inquire as to whether the debtor has favored or
preferred some creditors over others, by paying some creditors in full
to the detriment of others. As a Federal judge, Judge Porteous would
have well understood this purpose. Lightfoot explained:
But what I'm looking for was there anything unusual, any
unusual payments to anybody, anything outside a normal
monthly installment, like a normal house note, a normal car
payment, a normal payment to the credit card company. In
other words, anybody gets paid off, I want to know that.
---------------------------------------------------------------------------
Some relative gets paid back, I want to know that.
Lightfoot GJ III at 70-71 (Ex. 122).
Relying on the information that Judge Porteous had
provided, Lightfoot entered the answer: ``normal
installments.''\500\ When questioned about what he meant by
``normal installments'' during his Task Force Hearing
testimony, Lightfoot explained: ```[N]ormal installments' was
intended to cover the normal installments on his two leased
cars and his two home mortgages.''\501\
---------------------------------------------------------------------------
\500\Statement of Financial Affairs at SC00112 (Ex. 127). During
his Fifth Circuit testimony, Judge Porteous acknowledged that his
response to Question 3 was ``normal installments.'' Porteous 5th Cir.
Hrg. at 89 (Ex. 10).
\501\Lightfoot TF Hrg. at 48. See also Lightfoot GJ III at 70-72
(Ex. 122).
---------------------------------------------------------------------------
That answer--``normal installments''--was false, in light
of Judge Porteous's actions in the weeks immediately preceding
filing for bankruptcy.
First, it failed to disclose Judge Porteous's payment to
Treasure Chest. On March 2, 2001, Judge Porteous gambled at
Treasure Chest and took out seven $500 markers, for a total
extension of credit of $3,500. He repaid $2,000 with chips on
March 3, 2001, but he did not repay the balance until March 27,
2001 (the day before his Initial Petition was filed), when he
made a $1,500 cash payment to the casino--that is, he made a
payment on a debt ``aggregating more than $600 to any creditor,
made within 90 days immediately preceding the commencement of
this case.''\502\ Lightfoot testified that the repayment of the
markers to Treasure Chest should have been reported on the
Statement of Financial Affairs, but that, as with all of Judge
Porteous's gambling activities, Lightfoot did not include this
payment because he did not know about it.\503\
---------------------------------------------------------------------------
\502\Treasure Chest Customer Transaction Inquiry (HP Ex. 302).
Judge Porteous was able to take out so many markers on March 2, 2001
because his credit limit at Treasure Chest had been increased during
the previous summer. See Central Credit, Inc. Gaming Report for Judge
Porteous (HP Ex. 326).
\503\Lightfoot TF Hrg. II at 48.
---------------------------------------------------------------------------
Second, Judge Porteous also failed to disclose that on
March 23, 2001, he had his secretary, Danos, pay off his wife's
Fleet credit card balance of $1,088.41.\504\ Judge Porteous
claimed, in his Fifth Circuit testimony, that he had no
recollection of asking Danos to pay off his wife's Fleet bill.
However, he also testified that Danos had ``paid some bills''
for him in the past.\505\ Danos testified before the Fifth
Circuit that she ``assume[d]'' Judge Porteous asked her to
write the check to Fleet and that she didn't talk with Carmella
about paying her bills.\506\
---------------------------------------------------------------------------
\504\Fleet Statement and Danos Check (Ex. 329); Fleet Statements at
SC00590 (Ex. 140). This payment was credited by Fleet on March 29,
2001. Because this check was not received by Fleet until the day after
Judge Porteous initially filed for bankruptcy, Judge Porteous could
argue that the payment to Fleet was not in fact made within the 90 days
preceding his bankruptcy filing (even though it had been mailed within
that time), and thus it was not required to be reported on the
Statement of Financial Affairs. However, if this were the case, then
Judge Porteous should have made sure that Fleet was listed on Judge
Porteous's Schedule F as an unsecured creditor. In either event, Fleet
should have appeared somewhere in Judge Porteous's bankruptcy filing.
In fact the transaction does not appear anywhere.
\505\Porteous 5th Cir. Hrg. at 97-98 (Ex. 10).
\506\Danos 5th Cir. Hrg. at 402-03 (Ex. 43).
---------------------------------------------------------------------------
As to both these items--the Treasure Chest payment and the
Fleet credit card payment--Lightfoot did not include them in
response to Question 3 on the Statement of Financial Affairs
because Judge Porteous did not disclose them to him.\507\
---------------------------------------------------------------------------
\507\``In other words, I, I--my questioning revealed that the only
payments that they [the Porteouses] said they made were just normal
installments on the debts that I knew of.'' Lightfoot GJ III at 72 (Ex.
122).
---------------------------------------------------------------------------
Finally, on February 26, 2001, Judge Porteous took out
$2,000 in markers at the Grand Casino Gulfport. As noted, these
were in fact outstanding as of the date he filed for bankruptcy
(March 28, 2001) and were not reported on the Schedule of
Unsecured Creditors. However, if Judge Porteous believed that
the markers had in fact been repaid prior to filing for
bankruptcy, that payment should have been disclosed. Again,
Lightfoot was unaware of the Gulfport markers.\508\
---------------------------------------------------------------------------
\508\In short, Judge Porteous would have known either that the debt
was actually pending (in which case it should have been listed on
Schedule F as a debt owed to an unsecured creditor) or that it had been
paid (in which case it should have been listed on the Statement of
Financial Affairs as a payment made in the 90 days preceding the
bankruptcy filing). This indebtedness was not listed in either place,
because Judge Porteous did not tell Lightfoot about it.
---------------------------------------------------------------------------
b. Gambling Losses
Question 8 on the Statement of Financial Affairs required
Judge Porteous to ``[l]ist all losses from . . . gambling
within 1 year immediately preceding the commencement of this
case or since the commencement of this case.'' In response, the
box for ``none'' is checked.\509\ However, an analysis of Judge
Porteous's gambling activities in the year preceding his
bankruptcy filing revealed that Judge Porteous had accrued
$6,233.20 in net gambling losses during that year.\510\
---------------------------------------------------------------------------
\509\Statement of Financial Affairs at SC00113 (Ex. 127).
\510\FBI Gaming Losses Chart (Ex. 337). FBI Agent Horner explained
this chart both to the Impeachment Task Force and to the Fifth Circuit
Special Committee, and he testified that Judge Porteous's losses
totaled $12,895.35, but Judge Porteous also had winnings of $5,312.15.
Horner TF Hrg. II at 16; Horner 5th Cir. Hrg. at 317-18 (Ex. 338). The
analysis of Judge Porteous's gambling activities (including losses) in
the year preceding his bankruptcy was based on a review of each
casino's records. Casinos keep these records because ``first of all,
they have to determine wins and losses for tax purposes for these
people; and then, second of all, they're basing their comps on these
numbers. So . . . they want the numbers to be as accurate as
possible.'' Horner 5th Cir. Hrg. at 322 (Ex. 338).
---------------------------------------------------------------------------
During his Fifth Circuit testimony, Judge Porteous admitted
that his response of ``none'' to that question was
``incorrect'':
Q. LJudge Porteous, do you recall that in the--that
your gambling losses exceeded $12,700 during the
preceding year?
A. LI was not aware of it at the time, but now I see
your documentation and that--and that's what it
reflects.
Q. LSo you--you don't dispute that?
A. LI don't dispute that.
Q. LTherefore, the answer ``no'' was incorrect,
correct?
A. LApparently, yes.
Q. LEven though this was signed under oath, under
penalty of perjury, correct?
A. LRight.\511\
---------------------------------------------------------------------------
\511\Porteous 5th Cir. Hrg. at 99 (Ex. 10).
c. Declaration
At the end of his Statement of Financial Affairs, Judge
Porteous signed a declaration which stated:
I declare under penalty of perjury that I have read the
answers contained in the foregoing statement of
financial affairs and any attachments thereto and that
they are true and correct.\512\
---------------------------------------------------------------------------
\512\Statement of Financial Affairs at SC00116 (Ex. 127).
E. Judge Porteous's Post-filing Activities and the Bankruptcy Creditors
Meeting
1. Post-Filing Activities
Despite the fact that he had filed for bankruptcy
protection and claimed to have over $190,000 in credit card
debts,\513\ Judge Porteous continued to gamble and to incur
thousands of dollars in additional debt immediately following
his bankruptcy filing.\514\ Judge Porteous's activities between
March 28, 2001, when he filed his Initial Petition, and the
Creditors Meeting on May 9, 2001 included the following:\515\
---------------------------------------------------------------------------
\513\Bankruptcy Schedules at SC00092 (Ex. 127).
\514\Judge Porteous never advised Lightfoot that, after filing the
amended petition on April 9, 2001, he incurred thousands of dollars in
gambling debt at casinos. Lightfoot 5th Cir. Hrg. at 449 (Ex. 124).
\515\While there was no official court order during this time
period prohibiting Judge Porteous from incurring new debt, nor had the
bankruptcy trustee yet instructed Judge Porteous that he may not incur
new debt, Lightfoot had already made it clear to Judge Porteous that he
should not be incurring any new debt. Lightfoot Dep. at 13-14 (Ex.
123). Moreover, Judge Porteous's return to the same conduct that had
caused him to go into bankruptcy in the first place necessarily placed
his creditors at risk. Gambling, and seeking credit to do so, in the
very days after filing false documents in bankruptcy (that concealed
his gambling) bear on the question of his ``good faith'' in seeking
bankruptcy. See testimony of Judge Greendyke, in X(F)(1) and (2),
infra. Finally, Judge Porteous's repayment of the Beau Rivage debt by
endorsing a check to Danos and having her write a check to the casino,
thus bypassing Judge Porteous's account altogether, is evidence of his
consciousness of the wrongfulness of taking out and repaying debts to
casinos between the time of filing for bankruptcy and the Creditors
Meeting.
LApril 6, 2001--Judge Porteous requested a
one-time credit increase at the Beau Rivage Casino from
$2,500 to $4,000.\516\
---------------------------------------------------------------------------
\516\Beau Rivage Credit History (Ex. 303).
LApril 7-8, 2001--Judge Porteous took out
$2,000 in markers at the Beau Rivage Casino. He left
the casino owing $1,000, which was not paid back until
May 4, 2001.\517\
---------------------------------------------------------------------------
\517\Beau Rivage Balance Activity (Ex. 304). Judge Porteous was
able to leave the casino while still owing money because he had an
established credit line. FBI Agent Horner testified before the Fifth
Circuit Special Committee and explained that a player has ``to
establish some kind of credit line with the casino before they would
let you [leave while still owing money].'' Horner 5th Cir. Hrg. at 309-
10 (Ex. 338).
LApril 10, 2001--Judge Porteous took out
$2,000 in markers at Treasure Chest. He paid them all
back the same day in chips.\518\
---------------------------------------------------------------------------
\518\Treasure Chest Customer Transaction Inquiry (Ex. 305).
LApril 30, 2001--Judge Porteous submitted a
casino credit application to Harrah's Casino and
requested a $4,000 credit limit.\519\
---------------------------------------------------------------------------
\519\Harrah's Casino Credit Application (Ex. 149). This application
lists ``$0'' for indebtedness, though it is not clear who may have
written that figure on the form. See also Central Credit, Inc. Gaming
Report for Judge Porteous (Ex. 326).
LApril 30, 2001--Judge Porteous took out
$1,000 in markers at Harrah's Casino. These markers
were not paid back until May 30, 2001.\520\
---------------------------------------------------------------------------
\520\Harrah's Patron Credit Activity (Ex. 306). Judge Porteous
wrote a check to repay these markers on April 30, 2001, but Harrah's
held the check for 30 days before depositing it.
LApproximately April 30-May 1, 2001--Judge
Porteous repaid the Beau Rivage by withdrawing $1,000
from his IRA, which was paid to him in the form of a
check dated April 24, 2001. He endorsed the check
directly to Danos, and she deposited it into her
personal account on May 1, 2001. On April 30, 2001,
Danos wrote a check payable to the Beau Rivage in the
amount of $1,000, the memo line referencing Judge
Porteous. As noted, that payment was credited against
Judge Porteous's Beau Rivage account on May 4,
2001.\521\
---------------------------------------------------------------------------
\521\Thus, rather than depositing the money into his own account
and writing a check on that account, Judge Porteous conducted this
transaction in a way that bypassed his accounts altogether and
consistent with an intent to conceal his gambling. (Ex. 382).
LMay 7, 2001--Judge Porteous took out $4,000
in markers at Treasure Chest. He left the casino owing
this amount and repaid all $4,000 2 days later in
cash.\522\
---------------------------------------------------------------------------
\522\Treasure Chest Customer Transaction Inquiry (Ex. 307).
2. Bankruptcy Creditors Meeting
On May 9, 2001, the Section 341 Creditors Meeting was held
in Judge Porteous's bankruptcy case.\523\ Bankruptcy trustee
S.J. Beaulieu, Jr. presided over the hearing, which was
attended by Judge Porteous and his attorney Lightfoot. At the
beginning of the hearing, Judge Porteous was provided with a
copy of a pamphlet entitled ``Your Rights and Responsibilities
in Chapter 13.''\524\ Section 6 of this pamphlet discussed
credit while in Chapter 13 and specifically provided:
---------------------------------------------------------------------------
\523\Trustee's Memo to Record, Docket No. 7, In the Matter of
Porteous, Case No. 01-12363 (Bankr. E.D. La. May 9, 2001) (Ex. 129). A
section 341 creditors meeting is a statutorily mandated meeting of
creditors and equity security holders that is held by the bankruptcy
trustee. See 11 U.S.C. Sec. 341 (2003). Lightfoot explained during his
Task Force testimony that the purpose of a section 341 creditors
meeting is to examine the debtor under oath regarding his petition and
bankruptcy schedules. Lightfoot TF Hrg. II at 49.
\524\See Creditors Meeting Hearing Transcript (indicating that
Judge Porteous was given a copy of the pamphlet) (Ex. 130); see also
Chapter 13 Pamphlet (Ex. 148). During his testimony before the Fifth
Circuit Special Committee, Judge Porteous acknowledged receiving the
pamphlet from the bankruptcy trustee. See Porteous 5th Cir. Hrg. at 60
(Ex. 10).
You may not borrow money or buy anything on credit
while in Chapter 13 without permission from the
bankruptcy Court. This includes the use of credit cards
or charge accounts of any kind. If you or a family
member you support buys something on credit without
Court approval, the Court could order the goods
returned.\525\
---------------------------------------------------------------------------
\525\Chapter 13 Pamphlet at SC00402 (Ex. 148).
Judge Porteous was thereafter placed under oath and asked
if everything in his bankruptcy filing was true and correct.
Judge Porteous stated, ``yes.'' Judge Porteous was also
specifically asked if he listed all of his assets in his
bankruptcy filing, and again he answered ``yes.'' He also
affirmed that his take home pay was ``about $7,500 a
month.''\526\
---------------------------------------------------------------------------
\526\Creditors Meeting Hearing Transcript at SC00595-96 (Ex. 130).
---------------------------------------------------------------------------
The bankruptcy trustee made it clear to Judge Porteous that
he was no longer allowed to incur any new debt or to buy
anything on credit. Specifically, the trustee told Judge
Porteous that he was ``on a cash basis now.''\527\ Judge
Porteous did not disclose at the hearing that between the time
of filing for bankruptcy and the date of the Creditors Meeting
he had incurred additional debt by taking out markers at
casinos--one of which he paid back by way of a transaction that
bypassed his personal accounts altogether. Nor did he disclose
that he had increased a credit line, that he had concealed a
credit card in his bankruptcy filing, or that he had
outstanding markers at Harrah's Casino on the date of the
meeting.
---------------------------------------------------------------------------
\527\Creditors Meeting Hearing Transcript at SC00598 (Ex. 130).
During his Fifth Circuit testimony, Lightfoot confirmed that both he
and the bankruptcy trustee advised Judge Porteous about not incurring
new debt without permission. Lightfoot 5th Cir. Hrg. at 454 (Ex. 124);
Lightfoot Dep. at 13-14 (Ex. 123).
---------------------------------------------------------------------------
Despite this admonition by the bankruptcy trustee, and
despite the clear language in the ``Rights and
Responsibilities'' pamphlet stating that he was not allowed to
borrow money, Judge Porteous continued to gamble, to take out
casino markers, and to incur new debt after the Creditors
Meeting on May 9, 2001. Judge Porteous's activities between May
9, 2001 and June 28, 2001 included the following:
LMay 16, 2001--Judge Porteous took out a $500
marker at Treasure Chest. He repaid the marker the same
day in chips.\528\
---------------------------------------------------------------------------
\528\Treasure Chest Customer Transaction Inquiry (Ex. 308).
LMay 26-27, 2001--Judge Porteous took out
$1,000 in markers at the Grand Casino Gulfport. He paid
back $900 on May 27, 2001 and paid back the remaining
$100 on June 5, 2001.\529\
---------------------------------------------------------------------------
\529\Grand Casino Patron Transaction Request (Ex. 309).
LJune 20, 2001--Judge Porteous took out a $500
marker at Treasure Chest. He repaid the marker the same
day in chips.\530\
---------------------------------------------------------------------------
\530\Treasure Chest Customer Transaction Inquiry (Ex. 310).
F. The June 28, 2001 Confirmation of Judge Porteous's Bankruptcy Plan,
and Judge Porteous's Violations of the Order
1. The Order's Prohibition Against Judge Porteous Incurring New Debt
On June 28, 2001, U.S. Bankruptcy Judge William
Greendyke\531\ signed an Order Confirming the Debtor's Plan and
Related Orders (the ``June 28 Order''). Among its terms, the
June 28 Order prohibited Judge Porteous from incurring new debt
without the permission of the trustee:
---------------------------------------------------------------------------
\531\Judge Greendyke is now in private practice with the law firm
of Fulbright & Jaworski LLP. Prior to entering private practice in
2004, Judge Greendyke was the Chief Judge of the United States
Bankruptcy Court for the Southern District of Texas. He was specially
assigned Judge Porteous's bankruptcy case to avoid having the case
heard by a bankruptcy judge from the Eastern District of Louisiana.
Judge Greendyke was interviewed by Impeachment Task Force staff on
January 7, 2009.
The debtor(s) shall not incur additional debt during
the term of this Plan except upon written approval of
the Trustee. Failure to obtain such approval may cause
the claim for such debt to be unallowable and non-
dischargeable.\532\
---------------------------------------------------------------------------
\532\Order Confirming the Debtor's Plan and Related Orders, Docket
No. 22, In the Matter of Porteous, Case No. 01-12363 (Bankr. E.D. La.
June 28, 2001) (hereinafter ``June 28 Order'') (Ex. 133).
Judge Porteous testified he understood the June 28 Order at
the time the order was entered.\533\ Judge Porteous's
understanding that he needed the bankruptcy trustee's
permission to incur new debt is evidenced by the fact that on
at least two separate occasions he sought and received such
permission.\534\
---------------------------------------------------------------------------
\533\Porteous 5th Cir. Hrg. at 62 (Ex. 10). Lightfoot also
testified before the Impeachment Task Force that Judge Porteous was
aware the June 28 Order had been entered and that Judge Porteous had
received a copy of the Order.
\534\Lightfoot TF Hrg. II at 50. First, on December 20, 2002, the
bankruptcy trustee granted Judge Porteous's request to refinance his
home. (See Ex. 339.) And second, on January 2, 2003, the bankruptcy
trustee granted Judge Porteous's request to obtain two new car leases.
(See Ex. 340).
---------------------------------------------------------------------------
2. Judge Greendyke's Decision to Sign the Confirmation Order
Judge Greendyke was asked about his decision to sign the
June 28 Order, confirming Judge Porteous's Chapter 13 plan,
during his Fifth Circuit testimony:
Q. LGiven the sum of these events--the false filing of
the name on the initial petition, the omission of the
tax refund on the schedules where it should be noted,
the preferred payment to certain creditors. . . .
* * *
Given the sum of those events, had you known that, what
would have been your course of action while you were the judge
supervising that bankruptcy? Had you known all those events,
what action would you have taken?
A. LIf I had been aware of those items prior to the
signing of the confirmation order, I would not have
signed the confirmation order. I would probably have
sua sponte objected on the basis of lack of good faith.
I anticipate if my Houston trustee had been aware of
that he would have filed a similar objection. And we
would have had a hearing to try and iron things out.
Q. LAnd in bankruptcy filings, is good faith on behalf
of the debtor one of the key elements that the judge
and the trustee rely on?
A. LIt's a confirmation requirement.\535\
---------------------------------------------------------------------------
\535\Greendyke 5th Cir. Hrg. at 384-85 (Ex. 335).
In response to questioning by Chief Judge Jones, Judge
Greendyke further testified that he did not scrutinize Judge
Porteous's bankruptcy as closely as he normally would have
---------------------------------------------------------------------------
because Judge Porteous was a Federal judge:
Q. LI assume you attributed a higher--a certain level
of integrity to this filing because the subject in
quest was a Federal judge?
A. LI did not scrutinize it----
Q. LRight.
A. L--particularly because I thought it was a judge and
I----
Q. LBecause you thought a judge would turn square
corners?
A. LYes, Judge. That's why I was surprised when I found
out the things I found out.\536\
---------------------------------------------------------------------------
\536\Greendyke 5th Cir. Hrg. at 392 (Ex. 335).
3. Violations of the June 28 Order
Judge Porteous was subject to the terms of his Chapter 13
repayment plan for 3 years.\537\ Notwithstanding Judge
Greendyke's Order that ``[t]he debtor(s) shall not incur
additional debt during the term of this Plan except upon
written approval of the Trustee,'' Judge Porteous: (1) took out
42 markers over the course of 14 different gambling trips at 4
different casinos, (2) applied to increase his credit limit at
one of those casinos and thereafter utilized his increased
credit line, and (3) obtained and used a new low-limit credit
card. He did not have the permission of the trustee or the
bankruptcy court to engage in these activities.
---------------------------------------------------------------------------
\537\See Discharge of Debtor After Completion of Chapter 13 Plan,
Docket No. 49, In the Matter of Porteous, Case No. 01-12363 (Bankr.
E.D. La. July 22, 2004) (Ex. 137).
---------------------------------------------------------------------------
a. Casino Markers
After the June 28 Order was issued, Judge Porteous
continued to gamble and to take out markers, i.e., incur debt,
at casinos on a regular basis. He obtained these markers on his
existing lines of credit at the casinos, and on occasion sought
an increase on a line of credit.\538\
---------------------------------------------------------------------------
\538\See Central Credit, Inc. Gaming Report for Judge Porteous (Ex.
326). Agent Horner explained during his Task Force testimony that
gamblers are required to fill out credit applications before they can
take out markers at casinos, and these applications are very similar to
credit card applications. Horner TF Hrg. II at 13.
---------------------------------------------------------------------------
Judge Porteous took out at least 42 markers between July
19, 2001 and July 5, 2002. The following table summarizes Judge
Porteous's gambling activity during the first year following
the June 28 Order:\539\
---------------------------------------------------------------------------
\539\The documents related to the Treasure Chest transactions are
marked as follows: Ex. 311 (July 19, 2001 markers); Ex. 312 (July 23,
2001 markers); Ex. 313(a)-(b) (August 20-21, 2001 markers); Ex. 315
(October 13, 2001 markers); Ex. 316 (October 17-18, 2001 markers); Ex.
318 (November 27, 2001 markers); Ex. 319 (December 11, 2001 markers);
Ex. 322 (April 1, 2002 markers). The documents related to the Harrah's
transactions are marked as follows: Ex. 314 (September 28, 2001
markers); Ex. 320 (December 20, 2001 markers). The documents related to
the Beau Rivage transaction are marked as Ex. 317 (October 31-November
1, 2001 markers). The documents related to the Grand Casino Gulfport
transactions are marked as Ex. 321 (February 12, 2002 markers), Ex. 323
(May 26, 2002 markers), and Ex. 325 (July 4-5, 2002 markers). At the
Task Force Hearing, the total dollar amounts of the markers were
erroneously added up to be in excess of $149,000.
Judge Porteous repaid his October 17-18, 2001 debt to
Treasure Chest using his undisclosed Fidelity money market
account. As Table 7 shows, Judge Porteous left Treasure Chest
on October 18, 2001, owing $4,400. The following week, on
October 25, 2001, Judge Porteous withdrew $1,760 from his IRA.
He received those funds by check and, on October 30, 2001, he
deposited the check into his Fidelity money market account. On
November 9, 2001, he repaid Treasure Chest with $2,600 cash and
a $1,800 personal check from the Fidelity money market account
into which he had deposited the IRA proceeds.\540\
---------------------------------------------------------------------------
\540\Judge Porteous's financial records related to his use of his
Fidelity money market account to repay Treasure Chest are marked as Ex.
381.
---------------------------------------------------------------------------
During his Task Force Deposition, Lightfoot explained that
a marker is a form of indebtedness owed to a creditor, that it
was clearly prohibited by the June 28 Order, that at no time
did Judge Porteous inform him that he [Judge Porteous] had
taken markers, and that if the Judge had so informed him, it
would have been significant.
Q. LIs there any question in your mind that a marker is
a form of indebtedness owed to a creditor?
A. LNone whatsoever.
* * *
Q. LAnd if he had ever asked you, by the way, is a
marker a form of indebtedness which has to be
disclosed, what would you have said?
A. LI'd say--I would have told him that it's a civil
liability that has to be disclosed because it's a debt,
but that there are other issues about if you can't pay
it, it may be the subject of some sort of criminal bad
check prosecution that you need to look into.
Q. LOkay. But there's no question it's a form of debt,
correct?
A. LAt a minimum it's that, and at a maximum it could
be worse.\541\
---------------------------------------------------------------------------
\541\Lightfoot Dep. at 9-10 (Ex. 123). See also Lightfoot TF Hrg.
II at 64 (``No doubt at all'' that a marker is a form of indebtedness.)
---------------------------------------------------------------------------
Judge Porteous was questioned about his understanding of a
marker before the Fifth Circuit Special Committee, and he
accepted as accurate the following definition:
A marker is a form of credit extended by a gambling
establishment, such as a casino, that enables the
customer to borrow money from the casino. The marker
acts as the customer's check or draft to be drawn upon
the customer's account at a financial institution.
Should the customer not repay his or her debt to the
casino, the marker authorizes the casino to present it
to the financial institution or bank for negotiation
and draw upon the customer's bank account any unpaid
balance after a fixed period of time.\542\
---------------------------------------------------------------------------
\542\Porteous 5th Cir. Hrg. at 6465 (Ex. 10).
Judge Porteous's knowledge that a marker constituted an
unsecured debt is further evidenced by his pre-bankruptcy
efforts to ensure that there were no markers outstanding when
he filed for bankruptcy.
While Judge Porteous repaid some of these markers on the
same day they were taken out, those markers were no less an
extension of credit than the markers that were not repaid until
some time later. As Chief Judge Keir explained during his Task
Force testimony:
[T]he debt is incurred when the marker is taken. That
is when the debt arises. You owe the money. And it is
the incurrence of debt that was prohibited by the
order. It was not qualified by saying ``unless you pay
it off within the same day,'' or any other words, such
as if you pay it off in the same session or something.
It is the incurrence of debt. And, of course, when the
marker was taken out, there is no way that Judge
Porteous knew he was going to be able to or not going
to be able to pay it from a particular source or at a
particular time. It was gambling. There is a chance. So
the only real event in terms of his disobedience of the
order was the obtaining of the marker.\543\
---------------------------------------------------------------------------
\543\Keir TF Hrg. II at 78.
b. Judge Porteous's Application for a New Credit Card
On August 13, 2001--less than 2 months after Judge
Greendyke's June 28 Order was entered--Judge Porteous applied
for a new Capital One credit card. The credit card carried a
$200 credit line. Judge Porteous began using it immediately for
dining out, clothing purchases, theater tickets, gasoline, and
groceries, among other things.\544\ In May 2002, Judge
Porteous's credit line was increased to $400, and in November
2002, it was increased again to $600.\545\
---------------------------------------------------------------------------
\544\Capital One Credit Application and Statements (Ex. 341(a)-
(b)). FBI Agent Horner identified Judge Porteous's Capital One Credit
Application during his Task Force hearing testimony. Horner TF Hrg. II
at 18.
\545\Capital One Credit Application and Statements (Ex. 341(a)-
(b)).
---------------------------------------------------------------------------
Judge Porteous never sought permission from the bankruptcy
trustee to apply for this credit card. When asked about a
debtor's request to obtain a new credit card, bankruptcy
trustee S.J. Beaulieu told the FBI that he objects to all new
credit applications by debtors and sends the application to the
bankruptcy judge.\546\
---------------------------------------------------------------------------
\546\Beaulieu FBI Interview, Jan. 22, 2004 at SC00410 (Ex. 334).
---------------------------------------------------------------------------
c. Judge Porteous's Application for a Casino Credit
Increase
On July 4, 2002, Judge Porteous succeeded in increasing his
credit limit at the Grand Casino Gulfport from $2,000 to
$2,500.\547\ Immediately thereafter, Judge Porteous gambled at
the casino and took out the full $2,500 in markers.
---------------------------------------------------------------------------
\547\Grand Casino Gulfport Credit Line Change Request (Ex. 324);
see also Horner TF Hrg. II at 18.
---------------------------------------------------------------------------
4. Lightfoot's Knowledge of Judge Porteous's Post-June 28 Conduct
Judge Porteous did not tell Lightfoot that he had taken out
markers, applied for a credit card, or sought credit line
increases at casinos. When asked at the Task Force Hearing
whether he would have considered these acts violations of Judge
Greendyke's Confirmation Order, Lightfoot responded: ``They
clearly would have been.''\548\
---------------------------------------------------------------------------
\548\Lightfoot TF Hrg. II at 51.
---------------------------------------------------------------------------
G. Intent and Materiality
1. Intent
There are numerous reasons to conclude that the instances
of falsity on the Bankruptcy Schedules and Statement of
Financial Affairs, and the acts in violation of the June 28
Order, were committed by Judge Porteous knowingly and with
intent to deceive and defraud.
First, prior to bankruptcy, Judge Porteous had on numerous
other instances signed forms and documents with false
information in an effort to conceal material facts. For
example, he signed false documents in connection with his
background check to become a Federal judge (and made other
false statements to the FBI). On an annual basis, he also
signed false Financial Disclosure Reports that, among other
things, concealed his debts.\549\
---------------------------------------------------------------------------
\549\As Mr. Schiff noted at the markup:
---------------------------------------------------------------------------
Our investigation also uncovered that Judge Porteous
falsely reported the full extent of his liabilities in his
required financial disclosure reports. These debts, which
arose from Judge Porteous'[s] gambling problem, provided
further evidence of his willful efforts to conceal his
financial situation and the extent of his gambling over the
years.
Taken together, it is clear that his false statements in
the bankruptcy proceedings were not the result of an
oversight or mistake, but reflected instead intentional and
willful conduct to conceal his financial affairs and his
gambling.
Markup of H. Res. 1031 [and other bills], House Committee on the
Judiciary (Hearing Transcript, Jan. 27, 2010) at 33, available at
http://judiciary.house.gov/hearings/transcripts/transcript100127.pdf.
Second, the fact that Judge Porteous was dishonest and
acted with the intent to conceal and deceive in connection with
filing his Initial Petition under a false name and misleading
address supports the conclusion that the other false statements
at issue were made with a similar intent.
Third, throughout the workout process and up to the time of
filing for bankruptcy in March 2001, Judge Porteous updated
Lightfoot as to the full extent of his credit card debts (with
the exception of the Fleet card, which Judge Porteous concealed
entirely), and he did so as late as March 2001 so as to include
the most current March credit card balances as of the date of
filing. As Lightfoot explained:
[H]e had a practice of providing me with updated credit
card statements. Every so often I would get another
collection and I would adjust the balances, because the
accrual of interest was making them get larger.\550\
---------------------------------------------------------------------------
\550\See also Lightfoot TF Hrg. II at 43.
Though Judge Porteous updated Lightfoot on his credit card
debts, he did not update Lightfoot on income and assets
(including the tax refund), and did not provide information
that would disclose his gambling activities. Thus, the evidence
demonstrates that Judge Porteous was careful in picking and
choosing the information he would tell his attorney--informing
Lightfoot only what he wanted him to know and, more to the
point, concealing what he did not want to reveal.
Fourth, Judge Porteous is a Federal judge who has presided
over bankruptcy matters. Whether some of the acts under
scrutiny can be explained as a good faith mistake if committed
by someone of lesser sophistication, Judge Porteous was well
aware of the significance of the documents he was signing and
he well understood that he was signing them under penalty of
perjury.
Fifth, the omissions and false statements concerning
gambling activities are consistent with, and are explained by,
Judge Porteous's powerful motives to keep those activities
secret from his attorney, from his creditors, and from the
bankruptcy trustee and judge. Judge Porteous may not have known
precisely what would happen if his attorney and creditors
learned of his gambling, but there is little question that he
would have anticipated that the result would have been further
scrutiny into his finances and potentially court ordered
restrictions on his gambling.
Indeed, Lightfoot testified that it would have been very
important to him to learn of Judge Porteous's gambling, and
that such information not only would have triggered numerous
other questions, but would have resulted in his admonishing
Judge Porteous that he could no longer gamble and take on debt
to do so. When asked by Mr. Goodlatte what he would have done
had he learned that Judge Porteous gambled, Lightfoot
testified:
A. LI would want to know where are the gambling debts.
They must be listed. You can't gamble anymore. You
can't incur debt to gamble. Those admonitions. Have we
listed all of the debts or do you have--And then I
would get into the area of the markers. Because the
markers, although they are a civil liability to pay, as
you were explaining, they also could--if the marker is
put through as a check and it bounces and then you have
a bad check, which is a more serious problem.
Q. LTell me what sorts of questions you would have
asked him and what advice you would have given him if
he told you he was a frequent gambler?
A. LWell, I would have told him exactly what--do you
have any gambling debts that you haven't told me about?
If so, I need the name, address, account number,
balance due. Are you doing it now? Because your budget
will not work if you gamble. You have no authority to
make any debts to gamble.\551\
---------------------------------------------------------------------------
\551\Lightfoot TF Hrg. II at 64. See also Lightfoot TF Hrg. II at
48-49.
Judge Keir testified that if Judge Porteous had disclosed
the preferred payments to creditors on his Statement of
Financial Affairs, he would have run the risk that the trustee
would have sought to void those transfers and bring those
payments back into the bankruptcy estate.\552\ The casinos
would thus be treated the same as other unsecured creditors,
and would have received less than full payment on the
markers.\553\ Further, a default to one casino would jeopardize
Judge Porteous's credit at all casinos. As Agent Horner
testified, the various casinos participate in a centralized
credit system, and ``if a gambler gets a negative history on
his central credit report, what happens is the other casinos
generally cut him off.''\554\
---------------------------------------------------------------------------
\552\Keir TF Hrg. II at 71.
\553\Keir TF Hrg. II at 72. (``[Trustees] can and on fairly rare
occasion do actually launch these adversary proceedings to recover back
from the preferred creditor all of the money, and then the creditor has
to wait and get their aliquot share from distributions under the
plan.''). Lightfoot TF Hrg. II at 54.
\554\Horner TF Hrg. II at 19.
---------------------------------------------------------------------------
Thus, the conduct discussed in this Section is not simply a
variety of isolated and unrelated insignificant omissions that
can be characterized as mere mistakes. Rather, the omissions
and false statements form a sophisticated and coherent pattern
of deception that demonstrates a determined effort by Judge
Porteous to pick and choose those aspects of the Federal
bankruptcy laws with which he would honestly comply and those
which he would disregard.
Judge Porteous's conduct consisted of calculated acts at
every juncture associated with his bankruptcy. These include:
LHis failure to be truthful to his attorney at
the very outset as to his gambling debts and as to the
Fidelity money market account;
LHis conduct in the days immediately preceding
his filing the Initial Petition (having Danos pay off
the Fleet Card, obtain the P.O. Box, and paying off
Treasure Chest markers);
LHis causing false statements and omissions to
be made on the Initial Petition, the Bankruptcy
Schedules, and the Statement of Financial Affairs, and
swearing to those documents under penalty of perjury;
LHis secretly incurring gambling debt after
filing for bankruptcy but prior to the Creditors
Meeting, and paying off some of this debt by directing
that a check constituting a withdrawal from his IRA be
endorsed to Danos, and having her write the check
paying the casino;
LHis false swearing to the accuracy of the
documents he had previously signed, and acknowledging
his understanding of the requirement that he was on a
``cash basis now'' at the Creditors Meeting;
LHis applying for and taking out debt at
casinos, applying for and using a personal credit card
in violation of the June 28 Confirmation Plan Order,
and his using his concealed Fidelity money market
account to pay some of those debts.
Notwithstanding his knowledge that Chapter 13 bankruptcies
are to be characterized by providing to the creditors all
disposable income, Judge Porteous knowingly enjoyed substantial
disposable income, while creditors were left receiving only a
portion of what he owed them, and less than what they would
have received had he been honest and acted in good faith.
2. Materiality
Notwithstanding the willfulness of Judge Porteous's
conduct, a question at the Task Force Hearing was raised as to
the ``materiality'' of the false statements and omissions. For
example, Judge Porteous's attorney sought to make the point in
his examination of the witnesses that even though Judge
Porteous filed under a false name, the casinos would have
ultimately learned of the bankruptcy if they had run a credit
check that included Judge Porteous's Social Security
number.\555\
---------------------------------------------------------------------------
\555\Horner TF Hrg. II at 29-30.
---------------------------------------------------------------------------
The false statements were material for numerous reasons.
First and foremost, one requirement for obtaining bankruptcy
relief is that the debtor act in ``good faith.'' Dishonesty in
the filing of bankruptcy petitions is the antithesis of good
faith. Bankruptcy Judge Greendyke was asked about his decision
to sign the June 28 Order during his Fifth Circuit testimony,
and indicated that if he knew all the facts concerning Judge
Porteous's conduct, he ``would probably have sua sponte
objected on the basis of lack of good faith.''\556\ Lightfoot
testified that one of the reasons he instructed Judge Porteous
pre-bankruptcy to stop taking on debt was because of this
``good faith'' requirement:
---------------------------------------------------------------------------
\556\Greendyke 5th Cir. at 384-86 (Ex. 335). Judge Keir would have
done the same: ``It is a requirement under section 1325 that the plan
be proposed in good faith. The plan, based upon falsehoods like this,
is not proposed in good faith and the confirmation would have been
denied right at that point.'' Keir TF Hrg. II at 74.
Well, by the time someone is in a financial distress
sufficient to be consulting about a bankruptcy, it is
not good faith for such a person to continue making
debt. So I always admonish them not to do it anymore,
not to make any more credit card charges, et
cetera.\557\
---------------------------------------------------------------------------
\557\Lightfoot Hrg. II at 43.
Second, if Judge Porteous had disclosed accurate
information, the proceedings could have taken an entirely
different course. For example, the trustee could have ordered
that the undisclosed tax refund be distributed to the
creditors, or could have determined that the payment plan
should be increased to account for that additional amount in
Judge Porteous's possession, or that Judge Porteous was over-
withholding and thus had more disposable income. ``But, by
hiding [the refund], he both falsified the amount that the plan
was going to have to pay and took away from the trustee the
opportunity to obtain the funds to make sure creditors got
those funds.''\558\ Or, as Judge Keir explained, by filing
under a false name and by using a P.O. Box, Judge Porteous had
``falsified the official record of the United States court.''
Accordingly, between the time Judge Porteous filed his Initial
Petition and his Amended Petition, a lender's credit inquiry
would likely have failed to reveal that Judge Porteous had in
fact filed for bankruptcy.\559\ By failing to disclose the
Fleet card, he deprived Fleet of the accurate information
whereby it could decide whether it would wish to cancel Judge
Porteous's account.\560\ Alternatively, if Judge Porteous had
disclosed payments to casinos within the 90 days of filing, the
trustee may have decided to sue to recover those payments so
that those casinos would not end up getting ``a greater return
dollar for dollar than unsecured creditors generally in the
case.''\561\
---------------------------------------------------------------------------
\558\Keir TF Hrg. II at 70-71. As Judge Keir explained:
So if you hide $4,100 of your assets, you're reducing the
amount that the trustee is going to calculate in making a
recommendation to the court as to how high the plan payment
has to be. The second thing is, of course, a tax refund is
effectively cash to put into your account. You can spend
it. If you spend it and then your case for some reason was
converted to Chapter 7, it is not going to be available to
creditors. It is gone. So, often, at least in my district,
the trustee will take the position and if not agreed will
file a motion asking for a court order that the refund be
paid into the trustee upon receipt and, as in effect, part
---------------------------------------------------------------------------
of the payment required into the plan.
Id. at 70.
---------------------------------------------------------------------------
\559\Keir TF Hrg. II at 69.
\560\Keir TF Hrg. II at 71.
\561\Keir TF Hrg. II at 71.
---------------------------------------------------------------------------
Third, if Judge Porteous had been truthful as to his
gambling activities, he may have invited further and more
pointed scrutiny of all his financial affairs, bringing to
light his actual income and tax refund--the sort of scrutiny
that was not conducted in part because he was so careful and
thorough in removing evidence of his gambling from his
bankruptcy filings, and because it was assumed that as a
Federal judge, he would turn square corners. Judge Keir
explained that the bankruptcy system depends on the honesty of
the debtors in disclosing financial information. Judge Keir
testified:
All of this information is sworn to under penalty of
perjury. So they [the debtors] are taking a court oath
as to all of this, and this provides the essential
information that both the creditors and the trustee can
then use to decide whether further investigation by way
of the examination or take action [by] filing [a]
particular action before the bankruptcy court. They
investigate the liabilities by asking questions of
other witnesses or seeking bank records, for example.
All of this activity would follow on based upon what
the debtor has revealed. It has to be complete or there
is no trail for the creditors and the trustee to
follow.\562\
---------------------------------------------------------------------------
\562\Keir TF Hrg. II at 68.
Thus, ``the whole system demands and depends upon the
honesty of the honest but unfortunate person who seeks
relief.''\563\ Individuals can't just simply decide ``that they
can do whatever they want, ignoring laws, and so long as you
can't measure the particular damage of the violation, there is
no violation at all. That would be chaos.''\564\
---------------------------------------------------------------------------
\563\Keir TF Hrg. II at 72. Keir explained by analogy: ``[If] one
goes 110 miles an hour the wrong way down a one-way street but by good
fortune doesn't hit anybody, they are not exonerated from their
intentional misconduct for certain.'' Keir TF Hrg. II at 69.
\564\Keir TF Hrg. II at 69-70. As one appellate court has noted:
``Materiality does not require a showing that creditors are harmed by
the false statements. . . . Matters are material if pertinent to the
extent and nature of bankrupt's assets, including the history of a
bankrupt's financial transactions. . . . Materiality is also
established when it is shown that the inquiry bears a relationship to
the bankrupt's business transactions or his estate . . . or concerns
the `discovery of assets, including the history of a bankrupt's
financial transactions.''' United States v. O'Donnell, 539 F.2d 1233,
1237 (9th Cir. 1976). See also United States v. Gellene, 182 F.3d 578,
587 (7th Cir. 1998) (``Materiality . . . does not require harm to or
adverse reliance by a creditor, nor does it require a realization of a
gain by the defendant. Rather it requires that the false oath or
account relate to some significant aspect of the bankruptcy case or
proceeding in which it was given, or that it pertain to the discovery
of assets or to the debtor's financial transactions.'')
---------------------------------------------------------------------------
XI. THE FACTS UNDERLYING ARTICLE IV--JUDGE PORTEOUS'S FALSE STATEMENTS
IN CONNECTION WITH HIS CONFIRMATION
In 1994, Judge Porteous, in connection with his nomination
to be a Federal judge, was the subject of an FBI background
check and was required to submit to interviews and fill out
various forms and questionnaires.
First, Judge Porteous filled out and signed a document
entitled ``Supplement to Standard Form 86 (SF-86).'' That form,
at question 10's, sets forth the following question and answer
by Judge Porteous:
[Question] Is there anything in your personal life that
could be used by someone to coerce or blackmail you? Is
there anything in your life that could cause an
embarrassment to you or to the President if publicly
known? If so, please provide full details?
[Answer] NO\565\
---------------------------------------------------------------------------
\565\Porteous Background Check Documents, at PORT 00298 (part of
Ex. 69(b)).
Judge Porteous signed that document under the following
---------------------------------------------------------------------------
statement:
I understand that the information being provided on
this supplement to the SF-86 is to be considered part
of the original SF-86 dated April 27, 1994 and a false
statement on this form is punishable by law.\566\
---------------------------------------------------------------------------
\566\Porteous Background Check Documents, at PORT 00298 (part of
Ex. 69(b)). The form is undated. The date ``April 27, 1994'' was
written by hand. The Standard Form 86 is entitled ``Questionnaire for
Sensitive Positions (For National Security).''
Second, Judge Porteous, when interviewed by the FBI in July
1994, was asked a series of standard questions designed to
elicit derogatory information. The FBI Agent, in her write-up
---------------------------------------------------------------------------
of the interview, recorded Judge Porteous as stating:
PORTEOUS said he is not concealing any activity or
conduct that could be used to influence, pressure,
coerce, or compromise him in any way or that would
impact negatively on the candidate's character,
reputation, judgement, or discretion.\567\
---------------------------------------------------------------------------
\567\Porteous Background Check Documents, at PORT 00294 (part of
Ex. 69(b)).
Third, Judge Porteous was interviewed a second time by the
FBI on August 18, 1994, about concerns related to 1993
allegations that he had received monies from an attorney and a
bail bondsman to reduce bond. Again, in the FBI Agent's write-
up of that interview, Judge Porteous is recorded as stating
``that he was unaware of anything in his background that might
be the basis of attempted influence, pressure, coercion or
compromise and/or would impact negatively on his character,
reputation, judgement or discretion.''\568\
---------------------------------------------------------------------------
\568\Porteous Background Check Documents, at PORT 00493-94 (part of
Ex. 69(b)).
---------------------------------------------------------------------------
Fourth, on his United States Senate Committee on the
Judiciary ``Questionnaire for Judicial Nominees,'' Judge
Porteous was asked the following question and gave the
following answer:
[Question] Please advise the Committee of any
unfavorable information that may affect your
nomination.
[Answer] To the best of my knowledge, I do not know of
any unfavorable information that may affect my
nomination.\569\
---------------------------------------------------------------------------
\569\Porteous Background Check Documents, at PORT 00049 (part of
Ex. 69(a)).
The signature block in the form of an ``Affidavit,'' reads as
follows:
AFFIDAVIT
I, Gabriel Thomas Porteous, Jr., do swear that the
information provided in this statement is, to the best
of my knowledge, true and accurate.
Gretna, Louisiana, this 6 day of September, 1994.
It is signed by Judge Porteous and by a notary.\570\
---------------------------------------------------------------------------
\570\Thus, both Louis Marcotte and Robert Creely have admitted
making false statements when they were interviewed by the FBI in
connection with Judge Porteous's background check. Each individual
admitted not being candid as to their knowledge of Judge Porteous's
drinking habits and his financial circumstances.
---------------------------------------------------------------------------
These four statements each concealed that Judge Porteous
had engaged in serious and potentially criminal misconduct on
the bench on numerous occasions over several years. These acts
involved his assigning curatorships to Creely as part of a
kickback scheme. It also involved his setting bonds and setting
aside convictions for the Marcottes as part of a course of
conduct, quid pro quo relationship with them.
XII. OTHER THINGS OF VALUE RECEIVED BY JUDGE PORTEOUS AS A STATE COURT
JUDGE
Judge Porteous's acceptance of other things of value from
attorneys and parties, both as a State court judge and as a
Federal judge, is relevant to his intent and to address a
contention that the conduct discussed in Articles I and II
constitute nothing more than a misinterpretation of Judge
Porteous's friendship and his motives in relation to a few
attorneys and the Marcottes.
Attorney Leonard Cline was a plaintiff's attorney who, in
the late 1980's, had at least three cases in front of Judge
Porteous for which Judge Porteous awarded his clients large
verdicts. In the mid-1990's, an attorney sued Cline, alleging,
in substance, that Cline owed him a portion of the fees from
one of the cases. In connection with that suit, Cline's
secretary, Sharon Konnerup, gave a sworn statement in which she
testified that Cline and Judge Porteous were friends, that
Cline had given Judge Porteous a unique firearm which she had
actually seen, and that Cline also paid for a cruise for Judge
Porteous. Her testimony as to the firearm was as follows:
Q. LDoes Mr. Cline or did Mr. Cline, at the time you
were working with him, have any kind of a relationship
with Judge Porteous?
A. LThey were very good friends. Judge Porteous would
stop by the office every now and then.
Q. LDid they go to lunch together?
A. LYes, they did.
Q. LDid Mr. Cline ever give any gifts to Judge
Porteous?
A. LHe gave him a very, very, very unique shotgun that
had silver inscriptions on it, all silver scroll,
decorative.
Q. LWas that during your tenure with Mr. Cline?
A. LYes, it was.
Q. Did you ever see the shotgun?
A. LYes, I did.
Q. LDid Mr. Cline tell you he had purchased it for
Judge Porteous?
A. LYes, he did.\571\
---------------------------------------------------------------------------
\571\Konnerup Dep. Ex. 34 at 13-14 (Sworn Statement of Sharon
Konnerup, taken in American Motorists Ins. Co. v. American Rent-all,
Inc., et al, No. 322-619 (24th Jud. Dist. Ct., Jeff. Par., La., Sept.
7, 1995)) (Ex. 234).
Konnerup also testified that, based on discussions that she
overheard, she believed that Cline had paid for a cruise for
Judge Porteous.\572\
---------------------------------------------------------------------------
\572\Id. at 14-16.
---------------------------------------------------------------------------
Konnerup was deposed by Task Force Staff about this
incident. At her deposition, Konnerup testified that she worked
for Cline roughly between 1988 to 1990. She indicated her
current recollection of events was not as clear as it was at
the time of the 1995 sworn statement, but she did adopt her
1995 prior statement, stating that she took the oath to tell
the truth seriously, and she was confident she told the truth
as she knew it at that time.\573\
---------------------------------------------------------------------------
\573\Konnerup Dep. at 5 (Ex. 194).
---------------------------------------------------------------------------
Attorney Cline, who was deposed by Task Force Staff,
acknowledged having three cases in front of Judge Porteous. In
the first, Judge Porteous awarded a verdict after a non-jury
trial of ``[s]omething like a million dollars . . . or
$800,000'' in May 1987 in a case where Cline's client suffered
injuries after tripping over a manhole cover.\574\ In the
second case, in May 1989, Judge Porteous awarded a default
judgement of $1,461,105.18 to Cline's client. The case
thereafter settled for about $450,000.\575\ In the third case,
in June 1989, Judge Porteous awarded a verdict of $1.5 million
to Cline's client in an automobile accident case, also after a
non-jury trial. The award was reduced on appeal to about $1
million.\576\
---------------------------------------------------------------------------
\574\Cline Dep. at 11 (Ex. 195). Judge Porteous actually awarded
Cline's client $1,126,319.79 after a non-jury trial. The case is
described on appeal at Tracy v. Jefferson Parish, 523 So.2d 266 (La.
Ct. App. 1988) (Ex. 196(a)).
\575\Cline Dep. at 14-15 (Ex. 195). See also, Judgment, Cabral v.
National Fire Insurance Co., No. 374-310 (24th Jud. Dist. Ct., Jeff.
Par., La.), May 22, 1989 (Ex. 196(a)).
\576\Cline Dep. at 18 (Ex. 195). That case was American Motorist
Ins. Co. v. American Rent-all, No 322-619 (24th Jud. Dist Ct., Jeff.
Par., La.). It was reported on appeal at 579 So.2d 429 (La. Sup. Ct.
1991) (Ex. 196(f)).
---------------------------------------------------------------------------
Cline was asked at the Task Force deposition whether he
ever gave Judge Porteous a firearm or a cruise. He claimed to
have no recollection of doing so:
Q. LNow in or about the 1988 to 1990 time frame do you
recall giving Judge Porteous any sort of hunting
weapon, be it a shotgun, a rifle, or any other hunting
weapon?
A. LI have no recollection of that one way or another.
Q. LAnd in or about the same time frame, do you recall
paying for a cruise for Judge Porteous?
A. LI have no recollection of paying for a cruise one
way or the another.
* * *
LMy best guess today is I have no recollection of
giving Judge Porteous a gun or a cruise. I have no
recollection one way or the other.
* * *
Q. LIs it possible that you did?
A. LI have no recollection.
Q. L[S]o you're saying it is possible, you just don't
recall?
A. LI have no recollection of doing that, and I just
can't answer that question. I don't know, I mean, I
don't have any recollection.\577\
---------------------------------------------------------------------------
\577\Cline Dep. at 21-22, 24-25 (Ex. 195). In contrast to Cline's
lack of recollection as to whether he gave Judge Porteous a firearm or
a cruise, Cline had a detailed memory of the facts of the Tracy v.
Jefferson Parish case that took place in the late 1980's, which Cline
described as follows:
Q. [H]ow can you sue Jefferson Parish for somebody slipping
---------------------------------------------------------------------------
on a water meter manhole?
A. Well, because the grass grew about 16 to 18 inches under
the cover, which means that the grass, when the cover's not
on it, there's not much light in there. So it takes a while
for the grass to grow 16 to 18 inches.
So the [P]arish inspected the meters and read the meters
supposedly every month or whatever, every other month. I'm
not sure what the evidence showed back then. But it showed
that they had plenty of notice that the grass was under
there.
And after we reported the accident, they came out and cut
all the grass and put a nice cover on there and took
pictures and said, ``Well, look, this is how it was.'' And,
of course, we already had pictures. We had an expert out
there, and that wasn't so.
Cline Dep. at 9-10 (Ex. 195).
Cline testified he owned more that ten firearms, though he
denied being a ``collector.''\578\
---------------------------------------------------------------------------
\578\Cline Dep. at 25-26 (Ex. 195).
---------------------------------------------------------------------------
XIII. OTHER INSTANCES OF JUDGE PORTEOUS ACCEPTING THINGS OF VALUE FROM
PARTIES AND ATTORNEYS WHILE A FEDERAL JUDGE, AND HIS NON-DISCLOSURE OF
THOSE TRANSACTIONS
A. Introduction
Judge Porteous's acceptance of things of value from
attorneys with matters before him in the Liljeberg case was not
an isolated incident. He also accepted hunting trips and
expensive meals at high-end restaurants from parties, their
attorneys, and even witnesses, without making appropriate
disclosures to the opposing attorneys who appeared before him.
Judge Porteous's acceptance of these things of value in cases
in addition to the Liljeberg case provides additional evidence
of his intent to inappropriately use his Federal judgeship to
obtain personal benefits.
B. Judge Porteous's Recusal Practices as a Federal Judge
Judge Porteous had no procedures in place to recuse himself
in the event of a conflict, in contrast to the practice of
other Federal judges.
Judge Porteous's courtroom clerk, Richard Windhorst,
testified that he had previously clerked for District Court
Judge Morey L. Sear, who provided Windhorst a ``conflict
list.'' If a company on the list was a party in a case assigned
to Judge Sear, Windhorst was instructed to call the clerk's
office and have the case reassigned to another judge. Judge
Richard Haik maintained a ``recusal list'' for the same
purpose. As described later in this section, Judge Haik made
sure to include on that list companies which provided him with
hunting trips.\579\ In contrast, Judge Porteous had no such
list and had no such procedures. He recused himself only on
matters on which his sons, who were attorneys, were
involved.\580\
---------------------------------------------------------------------------
\579\Haik Affidavit (Ex. 186).
\580\Windhorst Dep. at 5-6 (Ex. 184).
---------------------------------------------------------------------------
C. The Alliance General Case and Other Cases Where Levenson Represented
a Party
1. The Alliance General Case
From 1996 to 1999, during roughly the same time that the
Liljeberg case was pending before him, Judge Porteous was also
presiding over Alliance General Insurance Co. v. Louisiana
Sheriffs' Automobile Risk Program.\581\ In that case, which was
filed in March 1996, the plaintiff, an insurance company, sued
various Sheriffs Associations (``the Sheriffs''), attempting to
void an auto insurance policy on the grounds that the Sheriffs
made misrepresentations in procuring the policy as to the
nature and extent of the claims. The Sheriffs were represented
by Allen Usry. Usry, in turn, retained Levenson.
---------------------------------------------------------------------------
\581\Civ. No. 2:96-cv-00961-GTP (E.D. La.), filed March 15, 1995,
closed May 28, 1999. See PACER Docket Report (Ex. 28).
---------------------------------------------------------------------------
During the pendency of that case, Usry and/or Levenson
invited Porteous on at least one, and perhaps two, hunting
trips to Usry's Mississippi property. In May 1999, Judge
Porteous decided a summary judgement motion in favor of the
Sheriffs--Levenson's and Usry's client--which effectively ended
the litigation. In December 1999, Levenson and/or Usry paid for
Judge Porteous to hunt at the Blackhawk hunting facility.\582\
---------------------------------------------------------------------------
\582\This trip occurred while the Liljeberg case was under
advisement with Judge Porteous.
---------------------------------------------------------------------------
2. Other Levenson Cases Before Judge Porteous
Levenson had other cases with Judge Porteous as well, and
in fact had cases pending before Judge Porteous at all times
from March 20, 1996 (prior to his becoming involved in the
Liljeberg case) through 2007.\583\ Judge Porteous's
relationship with Levenson prior to and during the Liljeberg
case has been described in prior sections. That same
relationship, whereby Levenson frequently paid for Judge
Porteous's meals, continued at least until 2003, when they
traveled to Washington, D.C. for a Mardi Gras event.\584\ At no
time in any case that Levenson had before Judge Porteous did
Judge Porteous disclose to the opposing party that he had a
close relationship with Levenson, that they had traveled
together frequently (including during the pendency of the
case), and that Levenson had paid for meals on those
trips.\585\
---------------------------------------------------------------------------
\583\These were:
G``First National Bank v. Evans, Civ. No. 2:96-cv-01006-GTP
(E.D. La.), filed March 20, 1996, closed September 19, 1997. In this
case, Judge Porteous appointed Levenson to represent a missing party.
Levenson was paid approximately $470. See PACER Docket Report (Ex.
---------------------------------------------------------------------------
28(c)); Levenson Dep. at 32-33 (Ex. 30).
GJoseph v. Sears Roebuck & Co., Civ. No. 2:97-cv-001923-GTP
(E.D. La.), filed January 21, 1997, closed July 24, 1998. Levenson did
not recall this case. See PACER Docket Report (Ex. 28(d)); Levenson
Dep. at 33 (Ex. 30).
GLiberty Mutual Fire Insurance v. Ravannack, Civ. No. 2:00-cv-
01209-CJB-DEK. (E.D. La.), filed April 19, 2000, closed June 13, 2007.
This complicated products liability case was reassigned from Judge
Porteous to Judge Carl Barbier in 2006. See PACER Docket Report (Ex.
28(e)); Levenson Dep. at 34 (Ex. 30).
GHolmes v. Consolidated Companies, Inc., Civ. No. 2:00-01447-
GTP (E.D. La.), filed May 17, 2000, closed May 22, 2001. Levenson
represented the defendant in an employment discrimination case. The
case settled for what Levenson described as a ``minimal amount.'' See
PACER Docket Report (Ex. 28(f)); Levenson Dep. at 34-36 (Ex. 30).
GMorales v. Trippe, Civ. No. 2:04-02483-GTP-DEK (E.D. La.),
filed August 31, 2004, closed April 18, 2005. This personal injury case
settled for the insurance policy limits. See PACER Docket Report (Ex.
28(g)); Levenson Dep. at 37-38 (Ex. 30).
---------------------------------------------------------------------------
\584\Levenson Dep. at 25 (Ex. 30); Danos Dep. I at 66-67 (Ex. 46).
\585\Levenson Dep. at 38-39 (Ex. 30).
---------------------------------------------------------------------------
D. Judge Porteous's Relationship with Richard Chopin and Acceptance of
Hunting Trips from Diamond Offshore
1. Attorney Richard Chopin
Attorney Richard Chopin was a friend of Judge Porteous for
years. They first met when they taught trial advocacy at
Louisiana State University Law School.\586\ They were perceived
by others to be friends.\587\
---------------------------------------------------------------------------
\586\Chopin Dep. at 17-18 (Ex. 182).
\587\Levenson Dep. at 28-29 (identifying Chopin as an attorney who
took Judge Porteous to lunch) (Ex. 30); Gardner Dep. at 38 (identifying
Judge Porteous and Chopin as friends) (Ex. 36). See also Baynham Dep.
at 19 (``My understanding was that they had been friends for a long
time.'') (Ex. 158); Danos Dep. I at 23 (Porteous and Chopin became
friends when Porteous was a State judge) (Ex. 46); Danos Dep. I at 68
(Chopin was one of the attorneys who took Judge Porteous to lunch on
occasion) (Ex. 46).
---------------------------------------------------------------------------
Chopin wrote a letter to Second Circuit Judge Ralph Winter,
dated March 28, 2008, supportive of Judge Porteous, in which
Chopin described Judge Porteous as an ``outstanding judge'' and
among ``one of finest judges before whom I have ever
appeared.'' He stated he had never ``heard, seen or experienced
any impropriety in Judge Porteous'[s] conduct'' and
characterized the allegations against Judge Porteous as having
the appearance of a ``witch hunt.'' Letter from Richard A.
Chopin, Esq., to Hon. Ralph K. Winter, March 28, 2008 Chopin
Dep. Ex. 58 (Ex. 258). Chopin also solicited other attorneys to
write letters in support of Judge Porteous. Chopin Dep. at 70-
71 (Ex. 182); Chopin Dep. Ex. 59 (Ex. 259).
Chopin testified that he took Judge Porteous out to lunch,
but he stated that Judge Porteous reciprocated.\588\ Chopin
also testified that Judge Porteous would have used a credit
card to charge meals at expensive restaurants in the period
subsequent to Judge Porteous filing for bankruptcy and when
Judge Porteous was under court-ordered restrictions from
incurring new debt.\589\
---------------------------------------------------------------------------
\588\Chopin claimed he and Judge Porteous split the costs of meals.
Chopin is the only attorney interviewed who has stated that Judge
Porteous paid for more than a small fraction of the meals. Chopin Dep.
at 56-57, 65 (Ex. 182).
\589\Chopin Dep. at 64-66 (``I'm going to assume [Judge Porteous]
charge[d], but it could have been, you know, where we were just getting
a sandwich and paid cash. But certainly he's charged them.'') (Ex.
182). Chopin's representation that Judge Porteous paid for meals with
him by credit card is not corroborated by any of Judge Porteous's
credit card records in the Committee's possession.
---------------------------------------------------------------------------
2. Diamond Offshore
Diamond Offshore (``Diamond'') is an oil rig company with
headquarters in Houston, Texas, that has been sued on occasion
as a result of injuries to others or damage to property that
occurs in the operation of Diamond's rigs. If the injuries or
damages occurred in the Gulf of Mexico, the civil suits were
frequently brought in the Eastern District of Louisiana, and
would occasionally be assigned to Judge Porteous. Chopin was
frequently retained by Diamond to defend the company in
litigation.
3. 2000-2007--Judge Porteous Accepts Six Hunting Trips From Diamond
Diamond owned or leased a hunting property in Texas that it
used for entertainment purposes. In the late 1990's, Diamond
arranged a hunting trip for attorneys and others in the claims
management part of the business. Chopin was invited, and,
according to a Diamond employee who had some responsibility for
the trips, Chopin, in turn, recommended that Diamond invite
Judge Porteous.\590\
---------------------------------------------------------------------------
\590\Chopin did not deny that he was the impetus to Diamond's
inviting Judge Porteous, but testified that he did not remember doing
that. Chopin Dep. 19-20 (Ex. 182).
---------------------------------------------------------------------------
The documentary evidence confirms that Diamond perceived
Chopin to be associated with Judge Porteous in connection with
these trips. In connection with Judge Porteous's attendance on
the 2001 trip, the communications from Diamond to Judge
Porteous concerning that trip stated that Judge Porteous could
provide his information to Chopin and that Chopin would act as
an intermediary.\591\
---------------------------------------------------------------------------
\591\Chopin Dep. at 21-22 (Ex. 182); Chopin Dep. Ex. 51 (Ex. 251).
As late as November 15, 2006, Chopin was still involved in inviting
Judge Porteous on these hunting trips. In an email to Diamond's General
Counsel, Chopin wrote: ``. . . I had lunch with Judge Porteous
yesterday and he asked if I heard anything about the hunt. . . . I know
he would be thrilled to be invited again. . . .'' Diamond Documents at
D0075 (Ex. 177).
---------------------------------------------------------------------------
Judge Porteous went on six Diamond-sponsored hunting trips.
These occurred in early January in 2000, 2001, 2003, 2005,
2006, and 2007. In each of these 6 years, Chopin was also
present. Diamond documents reflect that Judge Porteous and
Chopin shared a room on at least the 2005 and 2006 trips.\592\
---------------------------------------------------------------------------
\592\Porteous did not disclose the 2000, 2001 and 2003 Diamond
hunting trips in his financial disclosure reports. He did disclose the
hunting trips as gifts in his 2005, 2006 and 2007 his financial
disclosure reports. See Exs. 106(a), 107(a), 109(a), 111(a), 112(a) and
113. By 2006, Judge Porteous knew he was under a criminal
investigation.
---------------------------------------------------------------------------
In connection with the hunting trips, Diamond paid all of
Judge Porteous's expenses. Diamond flew Judge Porteous, Chopin
and others from New Orleans to the hunting facility in Texas.
It provided air transportation (including by private aircraft),
meals, lodging, and an open bar, and paid for hunting licenses
if necessary. If the guest shot a deer, the deer would be
cleaned and butchered, and the processed meat sent to the
guest.\593\ The only expense a guest was required to cover was
the cost of mounting a deer head if this service was requested.
---------------------------------------------------------------------------
\593\Bradley Dep. at 27-28 (Ex. 181).
---------------------------------------------------------------------------
4. Specific Cases Assigned to Judge Porteous Involving Diamond and/or
Chopin
Notwithstanding the fact that Judge Porteous had started in
January 2000 to attend all-expense-paid, high-end hunting trips
sponsored by Diamond, he continued to preside over litigation
in which Diamond was a named defendant, without disclosing his
receipt of Diamond trips.\594\
---------------------------------------------------------------------------
\594\All the Diamond cases assigned to Judge Porteous either
settled or were reassigned, so unlike the Liljeberg case, Judge
Porteous had only limited opportunities to issue dispositive rulings in
those cases. Thus, no particular ruling by Judge Porteous has been
subject to judicial scrutiny in his handling of the Diamond cases.
---------------------------------------------------------------------------
The Diamond cases in front of Judge Porteous (since he
first started attending the Diamond hunting trips) include:
LSylve v. Oceaneering Int'l, Inc., British
Borneo Exploration, and Diamond Offshore Drilling, Inc.
was filed March 1999.\595\ Even though Diamond was a
named defendant, any liability on Diamond's part would
have been covered by an insurance policy. The insurance
company (Oceaneering International) was thus
responsible for managing the defense. However, Diamond
was not dismissed from the case. Diamond took Judge
Porteous hunting in January 2000, while the case was
pending and 2 months prior to trial. Trial commenced
March 13, 2000, and the parties settled on March 14,
2000.
---------------------------------------------------------------------------
\595\Civ. No. 2:99-cv-00841-GTP (E.D. La.). See PACER Docket Report
(Ex. 180(d)).
LBoothe v. Diamond Offshore Mgt. was filed
February 20, 2001.\596\ Diamond was represented by
Chopin. This case was filed about a month after Judge
Porteous had attended his second Diamond hunting trip
with Chopin in January 2001. A year later, in February
2002, the case was reassigned from Judge Porteous to
Judge Jay C. Zainey.
---------------------------------------------------------------------------
\596\Civ. No. 2:01-cv-00441-JCZ (E.D. La). See PACER Docket Report
(Ex. 180(f)).
LJohnson v. Diamond Offshore was filed in
September 2003 and was pending until March 2005.\597\
Diamond was represented by Chopin until August 2004, at
which time Chopin was replaced by another attorney. In
January 2005, during the case's pendency, Judge
Porteous went on his fourth Diamond hunting trip. In
this case, as with the Sylve case above, Diamond was
indemnified by a third party. The case settled.
---------------------------------------------------------------------------
\597\Civ. No. 2:03-cv-02505-GTP-ALC. (E.D. La.). See PACER Docket
Report (Ex. 180(g)).
LJones v. Diamond Offshore was filed March 31,
2004 and was resolved in June 2006.\598\ In January
2005, during the pendency of the case, Judge Porteous
went on his fourth Diamond hunting trip. In 2006, the
case was reassigned from Judge Porteous to Judge Carl
Barbier and settled for a modest amount.
---------------------------------------------------------------------------
\598\Civ. No. 2:04-cv-00922-CJB-ALC (E.D. La.). See PACER Docket
Report (Ex. 180(h)).
Although Judge Porteous did not end up presiding over jury
or non-jury trials involving Diamond, and was not otherwise
significantly involved in determinations as to the liability of
Diamond, in none of these four cases were the plaintiffs or
their attorneys made aware that Judge Porteous had gone on
hunting trips paid for by Diamond.
One additional case, Farrar v. Diamond Offshore,\599\
deserves specific mention. Diamond was represented by Chopin in
a personal injury case brought by plaintiff Farrar alleging
negligence. The case was filed in March 2003--2 months after
Judge Porteous had taken his third Diamond hunting trip (also
attended by Chopin). The parties settled in April 2004 on terms
acceptable to plaintiff's counsel, Peter Koeppel. However,
Koeppel's observations illustrate the consequences of Judge
Porteous's failure to disclose his relationship with both
Diamond and Chopin. After testifying that he was unaware that
Judge Porteous had gone on one or more hunting trips paid for
by Diamond and attended by Diamond's counsel, Koeppel testified
that if he had known of that fact, he would have felt
``ethically . . . obligated to inform my client . . . to seek
their consent in terms of either proceeding forward or advising
the court to recuse himself.'' He further testified that
information that the Judge had accepted a trip from Diamond
would have been important to his clients: ``[P]eople who work
out offshore on drilling rigs tend to be rather unsophisticated
and wary of the legal system in general. I can't say that for
every one of them, but in general. So it would be important to
tell Them.''\600\
---------------------------------------------------------------------------
\599\Civ. No. 2:03-cv-00782-GTP (E.D. La.). See PACER Docket Report
(Ex. 178).
\600\Koeppel Dep. at 6-7 (Ex. 183).
---------------------------------------------------------------------------
D. Judge Porteous's Acceptance of Hunting Trips from Rowan Companies
1. Rowan, Baynham, Hedrick and Dr. Cenac
Rowan Companies (``Rowan'') was an oil rig company with
headquarters in Houston, Texas. It also owned and operated
drilling rigs in the Gulf of Mexico, and was on occasion sued
for damages as a result of injuries or damages to property that
occurred in the operation of the rigs. When the injuries or
damages occurred in the Gulf of Mexico, civil suits were often
brought in the Eastern District of Louisiana. On occasion,
Judge Porteous was assigned these cases. Rowan, like Diamond,
leased or owned a property in Texas and sponsored hunting trips
for invited guests.
The Rowan hunting trips were similar to the Diamond trips.
Rowan paid for all expenses, including transportation to and
from the location (by private plane on occasion), lodging,
meals, liquor, hunting licenses, and meat processing.\601\
---------------------------------------------------------------------------
\601\Baynham Dep. at 5 (Ex. 158).
---------------------------------------------------------------------------
Bill Hedrick was the Rowan Vice President who supervised
Rowan's claims management process, and was responsible for
retaining outside counsel to defend Rowan in litigation.
Hedrick would frequently retain T. Patrick Baynham, a New
Orleans attorney, to represent Rowan. Baynham, like Chopin,
specialized in maritime defense.\602\ In mid-November 2001,
Hedrick met Judge Porteous for the first time at an overnight
hunt at the camp of Dr. Christopher Cenac, Sr.\603\
---------------------------------------------------------------------------
\602\Their firm's offices are on the same floor in the same
building. Chopin Dep. at 47-48 (Ex. 182). Over the years, Chopin and
Baynham have represented both Rowan and Diamond.
\603\Dr. Cenac is an orthopedist who is frequently retained by
Diamond and Rowan, as well as Chopin and Baynham, as a medical expert
witness. Hedrick recalled this hunt, and stated he perceived Judge
Porteous and Dr. Cenac to be friends. Hedrick Dep. at 5-6 (Ex. 166). It
is not known how Judge Porteous initially came to be friends with Dr.
Cenac.
---------------------------------------------------------------------------
2. Hunting Trips and Meals with Rowan, Hedrick and Baynham
On January 16, 2002, about 2 months after first meeting
Judge Porteous, Hedrick paid for dinner with Judge Porteous and
others. The bill was $392 at ``Eleven 79'' restaurant.\604\
---------------------------------------------------------------------------
\604\Hedrick's receipts and expense report for the meal have been
obtained. See Rowan Documents at RH 000110-11 (Ex. 154). These contain
a January 16, 2002 entry for ``Judge Porteous'' with the amount of $392
and the corresponding receipt. Hedrick identified these documents in
his deposition. Hedrick Dep. at 12 (Ex. 166); Hedrick Dep. Ex. 92 (Ex.
292).
---------------------------------------------------------------------------
On November 4-7, 2002, Judge Porteous went hunting at the
invitation of Hedrick at the Rowan hunting facility in Texas.
Hedrick was also in attendance.\605\
---------------------------------------------------------------------------
\605\Several witnesses have described these trips. See Hedrick Dep.
at 8-10 (Ex. 166); Baynham Dep. at 28-30 (Ex. 158) and Koeppel Dep. at
11-13 (Ex. 183).
---------------------------------------------------------------------------
On January 16, 2003, Hedrick paid for dinner with Judge
Porteous, his wife, and others. The bill was $591.36, again at
Eleven 79.\606\
---------------------------------------------------------------------------
\606\Rowan Documents at RH000112-13 (Ex. 154). The first of those
pages, RH 000112, references a January 16, 2002 entry for ``Judge
Porteous'' with the amount of $591.36. The second page sets forth the
corresponding receipt. Hedrick identified these documents in his
deposition. Hedrick Dep. at 12-13 (Ex. 166); Hedrick Dep. Ex. 93 (Ex.
293). Hedrick was reimbursed by Rowan for any meals he spent hosting
Judge Porteous. These were treated as business expenses--presumably
because it was in Rowan's corporate interest to have good relations
with the Judge hearing some its cases.
---------------------------------------------------------------------------
3. Hanna v. Rowan case before Judge Porteous
On November 21, 2002--2 weeks after the first hunting
trip--the complaint in Hanna v. Rowan Company Inc.\607\ was
filed and assigned to Judge Porteous.\608\ This case involved a
claim for damages allegedly sustained by plaintiff Hanna when a
ladder on which he was climbing or standing broke, causing him
to fall and injure his back. Rowan was represented by Baynham.
As of the date the case was filed, Judge Porteous had already
gone on the Rowan hunting trip, and had been the guest of the
Rowan Vice President at two meals, where Rowan had paid $392
and $591. This case was pending until August 2005, when
settlement was reached in the midst of a jury trial.
---------------------------------------------------------------------------
\607\PACER Docket Report, Hanna v. Rowan Company, Inc., et al, Civ.
No. 2:03-cv-03258-GTP-JCW (E.D. La.) (Ex. 156).
\608\PACER Docket Report, Hanna v. Rowan Company, Inc., et al, Civ.
No. 2:03-cv-03258-GTP-JCW (E.D. La.) (Ex. 156).
---------------------------------------------------------------------------
During the pendency of the case, on August 25, 2004,
Hedrick again took Judge Porteous to lunch. Also in attendance
was Magistrate Judge Daniel E. Knowles, III. This time, the
meal was at the Steak Knife and the bill was $142.00.\609\
Then, on November 16-19, 2004, while the Hanna case was still
pending, Judge Porteous attended another Rowan hunting trip,
where Baynham and Hedrick were both in attendance.\610\
---------------------------------------------------------------------------
\609\Hedrick Dep. at 13-14 (Ex. 166); Hedrick Dep. Ex. 94 (Ex.
294).
\610\Baynham Dep. at 12; Baynham Dep. Exs. 63-64 (Dep. Exs. 263 and
264); Rowan Documents at RH 000204 (Ex. 151). This trip was reported by
Judge Porteous in his 2004 Financial Disclosure Report, which he filed
in May 2005. This report was filed while the Hanna case was pending and
prior to the settlement of that case in August 2005. See Ex. 105(a).
---------------------------------------------------------------------------
A few days after the hunting trip, at Hedrick's suggestion,
Baynham called Judge Porteous to arrange for a lunch for the
three of them. It was scheduled for December 9, 2004, to
coincide with the date of a scheduled settlement conference
with the Magistrate Judge in the Hanna case.\611\
---------------------------------------------------------------------------
\611\Baynham Dep. at 16-17 (Ex. 158); Baynham Dep. Ex. 67 (Ex.
267).
---------------------------------------------------------------------------
On December 7, 2004--2 days prior to the lunch--Judge
Porteous issued an order denying Hanna's Motion for Summary
Judgment.\612\
---------------------------------------------------------------------------
\612\PACER Docket Report, Hanna v. Rowan Company, Inc., et al, Civ.
No. 2:03-cv-03258-GTP-JCW (E.D. La.) (Ex. 156); Young Dep. at 6 (Ex.
159); Young Dep. Exs. 72, 73 (Exs. 272, 273).
---------------------------------------------------------------------------
Hedrick was unable to attend the December 9, 2004 lunch.
Baynham, knowing that Chopin was a friend of Porteous, asked
Chopin to go in Hedrick's place. Baynham did not know Porteous
well, so it made things easier for Baynham to invite Chopin.
The three of them had what Baynham described as an ``extended
lunch'' at Restaurant 1827. \613\ Neither Chopin nor Baynham
could locate a receipt for this lunch. Baynham believed that
Chopin must have paid for it,\614\ and Chopin believed that
Baynham would have paid for it.\615\
---------------------------------------------------------------------------
\613\Baynham Dep. at 20 (Ex. 158). Chopin Dep. at 51 (Ex. 182).
Both Baynham and Chopin described the lunch as including several
drinks. Baynham informed Hedrick in an email the following day,
December 10, 2004, that he had had an ``extended lunch'' with Judge
Porteous. Baynham Dep. at 21 (Ex. 158); Baynham Dep. Ex. 68 (Ex. 268).
\614\Baynham Dep. at 21-22 (Ex. 158).
\615\Chopin Dep. at 52 (Ex. 182).
---------------------------------------------------------------------------
On March 24, 2005, while the Hanna case was still pending,
Judge Porteous had yet another lunch with Hedrick. Hedrick's
expense report reflects that this lunch also took place at
Eleven 79 restaurant and cost $130.00.\616\
---------------------------------------------------------------------------
\616\Rowan Documents at RH000105 (Ex. 153) and RH000288 (Ex.165).
Hedrick identified these documents in his deposition. Hedrick Dep. at
14 (Ex. 166); Hedrick Dep. Ex. 95 (Ex. 295).
---------------------------------------------------------------------------
None of the meals or trips that took place while the case
was pending (or prior thereto) were ever disclosed to Hanna's
counsel, Timothy Young.\617\
---------------------------------------------------------------------------
\617\Baynham Dep. at 16 (Ex. 158); Young Dep. at 8 (Ex. 159).
---------------------------------------------------------------------------
In August 2005, the Hanna trial commenced, and settled mid-
trial. Hanna received a cash settlement. Hanna's attorney,
Young, was satisfied with the settlement, so this is not a case
like Liljeberg where a party or counsel was the recipient of an
unfavorable verdict by Judge Porteous that was reversed by the
Court of Appeals. Young testified that ``perhaps'' he would
have wanted to know about the lunches, and ``most likely, yes''
he would have wanted to know about the hunting trips.\618\ He
further testified that if he had known of this information, he
would have discussed it with his client.\619\ Notably, Baynham
himself stated that he expected Judge Porteous to recuse
himself.\620\
---------------------------------------------------------------------------
\618\Young Dep. at 9-10 (Ex. 159).
\619\Young Dep. at 10 (Ex. 159).
\620\Baynham Dep. at 26-27 (Ex. 158).
---------------------------------------------------------------------------
In October 2006, the fact that Rowan took Judge Porteous
hunting during the pendency of the Hanna case in 2004 was
reported in the New Orleans Times-Picayune. In an article
entitled ``Company Facing Suit Took Judge Hunting,'' the New
Orleans Times-Picayune reported:
In 2003, a seaman named Robert Hanna sued his employer,
an offshore drilling company, after stairs on one of
its ships collapsed beneath him and dropped him several
feet to the floor.
His case against the Rowan Companies went to trial in
U.S. District Court in New Orleans in August 2005.
Within 2 days, attorneys announced they had agreed to a
settlement, the judge dismissed the jury and everyone
appeared to walk away satisfied.
What Hanna might not have known, however, is that while
his personal injury suit was pending, well before trial
began, Rowan treated the presiding judge, Thomas
Porteous Jr., to a $1,000 hunting trip.\621\
---------------------------------------------------------------------------
\621\K. Moran, ``Company Facing Suit Took Judge Hunting,'' New
Orleans Times-Picayune, Oct. 29. 2006 (Ex. 119(j)).
F. Turner v. Pleasant--Another Case Where Counsel Sought Judge
Porteous's Recusal
1. Introduction
In 2004, Judge Porteous faced a recusal motion in the case
Turner v. Pleasant,\622\ arising from his relationship with
Pleasant's attorney, Dick Chopin. Just as Lifemark's recusal
motion in the Liljeberg case threatened to expose Judge
Porteous's prior dealings with the attorneys in that case, the
recusal motion in Turner v. Pleasant threatened Judge Porteous
with the disclosure that he had been taking hunting trips from
Diamond, including having gone on a Diamond hunting trip with
defense counsel Chopin during the pendency of the case. As
discussed below, there are striking similarities between how
Judge Porteous handled the recusal motions in Turner v.
Pleasant and Liljeberg.
---------------------------------------------------------------------------
\622\PACER Docket Report, Turner v. Pleasant, Civ. No. 2:01-cv-
03572-GTP (E.D. La.) (Ex. 179(a)).
---------------------------------------------------------------------------
2. Background--Procedural History
On November 30, 2001, the complaint in Turner v. Pleasant
was filed. This was a personal injury case alleging that the
defendant (Pleasant) operated his boat in a negligent fashion,
causing an excessive wake that tossed Mrs. Turner in the air
and caused her to sustain a compression fracture of her back.
The plaintiffs were represented by Ernest Souhlas and his
partner Carter Wright; the defendant was represented by Chopin.
The defense medical expert was Dr. Christopher Cenac, with whom
Judge Porteous had previously hunted and had a social
relationship.\623\ On January 3-5, 2003, while the case was
pending, Judge Porteous went on a Diamond hunting trip which
Chopin also attended.\624\
---------------------------------------------------------------------------
\623\Also, when Turner v. Pleasant was pending, Dr. Cenac had been
the King of Mardi Gras in Washington D.C. in 2003. Judge Porteous was a
guest at that event.
\624\Guest List for January 3-5, 2003, Diamond Hunting Trip, D0081
(Ex. 177).
---------------------------------------------------------------------------
About 3 months after Judge Porteous and Chopin went on the
hunting trip, on April 22-23, 2003, a non-jury trial was held
in the Turner case. Dr. Cenac was one of the defendant's
medical experts.\625\
---------------------------------------------------------------------------
\625\PACER Docket Report, Turner v. Pleasant, Civ. No. 2:01-cv-
03572-GTP (E.D. La.) (Ex. 179(a)).
---------------------------------------------------------------------------
Nearly 9 months after trial, on January 27, 2004, Judge
Porteous issued his opinion in favor of the defendant.\626\ In
reaching his decision, he specifically credited the testimony
of Dr. Cenac.\627\
---------------------------------------------------------------------------
\626\Order and Reasons, Turner v. Pleasant, Civ. No. 2:01-cv-03572-
GTP (E.D. La., Jan. 22, 2004) (Ex. 179(c)).
\627\Order and Reasons, Turner v. Pleasant, Civ. No. 2:01-cv-03572-
GTP (E.D. La., Jan. 22, 2004) at 5 (Ex. 179(c)).
---------------------------------------------------------------------------
3. Souhlas's Motion for a New Trial and Motion to Recuse Judge Porteous
After the April 2003 trial in Turner v. Pleasant, and while
the case was awaiting Judge Porteous's decision, Souhlas
learned that Judge Porteous had gone hunting with Chopin while
the case was pending.\628\ Accordingly, on February 5, 2004, a
week after Judge Porteous issued his decision, Souhlas filed a
motion for a new trial and also moved to recuse Judge
Porteous.\629\
---------------------------------------------------------------------------
\628\Souhlas testified that after he had tried the case, he ``was
told by a person that they [Judge Porteous and Chopin] had a close
personal relationship and they went on many hunting trips together''
and that was the first time he had been made aware of that fact.
Souhlas Dep. at 14 (Ex. 185). Chopin did not include in any pleading an
allegation that Souhlas was aware of the hunting trip at the time of
the trial.
\629\Plaintiffs' Motion for New Trial and/or Motion to Recuse,
Turner v. Pleasant, Civ. No. 2:01-cv-03572-GTP (E.D. La., Feb. 7, 2004)
(Ex. 179(d)).
---------------------------------------------------------------------------
In that motion, after arguing that Judge Porteous's
decision was contrary to the facts elicited at trial, Souhlas
requested, in the alternative that ``this Court grant a new
trial and recuse itself in this matter based upon . . . the
grounds that the findings of fact and the conclusions of law
reflect partially [sic: should be `partiality'] and bias in
favor of the defendant and/or defense counsel in this
case.''\630\
---------------------------------------------------------------------------
\630\Plaintiffs' Memorandum in Support of Motion for New Trial and/
or Motion to Recuse at 7, Turner v. Pleasant, Civ. No. 2:01-cv-02572-
GTP (E.D. La., Feb. 7, 2004) (Ex. 179(d)).
---------------------------------------------------------------------------
In his opposition to the motion, Chopin responded primarily
by attacking Souhlas:
In an act of desperation never previously witnessed
by the undersigned, the plaintiffs have vituperatively
attacked the Court and its integrity. Not only are the
plaintiffs' claims flagrantly in violation of all
rules, they are reprehensible. Moreover, the plaintiffs
do not even attempt to offer any support for their new
allegations.
* * *
The defendants will not dignify the plaintiffs
allegations by according them any additional print,
except to say that the plaintiffs' motion for recusal
also should be denied.\631\
---------------------------------------------------------------------------
\631\[Defendant's] Memorandum in Opposition to Plaintiffs' Motion
for New Trial and/or Motion to Recuse at 7, Turner v. Pleasant, Civ.
No. 2:01-cv-02572-GTP (E.D. La., Feb. 17, 2004) (Ex. 179(e)).
Souhlas, in his reply to Chopin's opposition, specifically
addressed Chopin's contention that he (Souhlas) had not offered
any support for his claims of bias. He specifically alleged
that Judge Porteous ``may have a close personal relationship
with defense counsel, Richard A. Chopin,'' that ``the
relationship includes social contacts and hunting trips,'' and
that ``some of the social contacts took place while this case
was under advisement''\632\--assertions which were in fact
true.
---------------------------------------------------------------------------
\632\Plaintiffs' Supplemental Memorandum in Support of Motion for
New Trial and/or Motion to Recuse at 3, Turner v. Pleasant, Civ. No.
2:01-cv-02572-GTP (E.D. La., Feb. 17, 2004) (Ex. 179(f)). In fact, the
hunting trip occurred while the case was pending trial.
---------------------------------------------------------------------------
On March 22, 2004, Judge Porteous denied Souhlas's motion.
In doing so, he did not discuss or address any of the factual
assertions, terming them ``unsubstantiated.'' Judge Porteous
stated:
To suggest that the Court has any partiality for the
defendant and/or defense counsel is utterly
unsubstantiated given that the Court has often
demonstrated its complete independence and the absence
of any partiality or favoritism in prior cases
involving defense counsel. Additionally, in a previous
non-jury case involving one of plaintiff's counsel, Mr.
Souhlas, where a substantial verdict was rendered in
favor of the plaintiff, there was no suggestion of any
partiality by the court towards plaintiffs' counsel,
even though he has been a friend of this judge for over
twenty years. This flagrant attack on the credibility
of this Court is not only unfounded and without merit,
but not supported by any evidence. This Court finds
that no reasonable man would harbor doubts about this
judge's impartiality, and therefore, recusal is not
warranted.\633\
---------------------------------------------------------------------------
\633\Order and Reasons, Turner v. Pleasant, Civ. No. 2:01-cv-02572-
GTP (E.D. La., Mar. 25, 2004) at 4 (emphasis supplied) (Ex. 179(g)).
Judge Porteous referenced a personal injury case that Souhlas had filed
in1996. The plaintiff in that case had stepped in a hole on a city
street, resulting in permanent damage to his right leg. Judge Porteous
awarded the plaintiff $650,000. The facts are set forth in Wykle v.
City of New Orleans, 154 F.3d 416 (5th Cir. 1998).
4. Souhlas's Appeal to the Fifth Circuit
Souhlas appealed to the Fifth Circuit, and raised the same
issues as to Judge Porteous's relationship with Chopin that he
had raised below. He argued that the factual allegations had
neither been addressed nor disputed, by either Judge Porteous
or Chopin, in the District Court proceedings.\634\
---------------------------------------------------------------------------
\634\Brief on Behalf of Plaintiffs-Appellants [Turner], Turner v.
Pleasant, No. 04-30406, 2004 WL 3588422, at *1, 29-30 (5th Cir., Jul.
12, 2004) (Ex. 179(h)).
---------------------------------------------------------------------------
In response, Chopin relied on Judge Porteous's language in
his ruling denying the recusal, including Judge Porteous's
statement that he and Souhlas had been friends for 20
years.\635\
---------------------------------------------------------------------------
\635\Original Brief on Behalf of Defendants/Appellees [Pleasant],
Turner v. Pleasant, No. 04-30406, 2004 WL 3588420, at *28-29 (5th Cir.,
Aug. 11, 2004) (emphasis supplied) (Ex. 179(i)).
---------------------------------------------------------------------------
In his reply brief to the Fifth Circuit, Souhlas reasserted
the specificity of his allegations, i.e., Judge Porteous's
ongoing social relationship with and hunting trip with Chopin
during the pendency of the proceedings. Souhlas further
addressed Judge Porteous's contention that he and Judge
Porteous were longtime friends, and specifically denied ``that
a close personal relationship exists between plaintiffs'
counsel and the District Court.''\636\
---------------------------------------------------------------------------
\636\Reply Brief on Behalf of Plaintiffs-Appellants [Turner],
Turner v. Pleasant, No. 04-30406, 2004 WL 3588421, at *14 (5th Cir.,
Aug. 30, 2004) (Ex. 179(j)).
---------------------------------------------------------------------------
In January 2005, while the case raising the issue of Judge
Porteous's relationship with Chopin, Judge Porteous and Chopin
shared a room together on another Diamond sponsored hunting
trip.\637\
---------------------------------------------------------------------------
\637\Room Assignment Sheet [for Diamond Hunting Trip January 7-9,
2005] at D0089 (Ex. 177).
---------------------------------------------------------------------------
On March 31, 2005, the Fifth Circuit denied the
appeal.\638\ As to Souhlas's motion to recuse, the Fifth
Circuit noted only that the allegation was unsubstantiated.
---------------------------------------------------------------------------
\638\Turner v. Pleasant, No. 04-30406, 2005 WL 744568 (5th Cir.
Mar. 31, 2005) (Ex. 179(k)).
---------------------------------------------------------------------------
5. Discussion of Judge Porteous's Handling of the Recusal Motion in
Turner v. Pleasant
It is noteworthy that at the time of Souhlas's motion, in
February 2004, the Farrar v. Diamond case (a case with Chopin
as Diamond's counsel that was discussed above) was pending in
front of Judge Porteous. Thus, if either Chopin or Judge
Porteous were to have disclosed that they had gone hunting
together as guests of Diamond while the Turner case was
pending, such a disclosure could have caused problems for Judge
Porteous and Chopin in connection with the Farrar case (and
also revealed that Judge Porteous had accepted prior Diamond
trips as well).\639\ Accordingly, the entire thrust of Judge
Porteous's (and Chopin's) response to Souhlas's allegations was
to assert that the allegations were unproven (not that they
were false), to disclose no relevant information which would
permit a fair assessment of the merits of the recusal motion,
and to attack Souhlas for raising the issue.
---------------------------------------------------------------------------
\639\A few weeks after Judge Porteous denied Souhlas's recusal
motion, on April 20, 2004, Chopin settled the Farrar case with attorney
Koeppel. See PACER Docket Report, Farrar v. Diamond Offshore Co., Civ.
No. 2:03-cv-00782-GTP (E.D. La.) (Ex. 178).
---------------------------------------------------------------------------
Moreover, Judge Porteous's statement that Souhlas ``has
been a friend of this judge for over twenty years'' deserves
particular scrutiny--both for what Judge Porteous may have
intended to be the legal or factual significance of that
purported relationship, as well as for the veracity of the
assertion. One reading of Judge Porteous's ``friend'' statement
was that he intended to imply there was a symmetry between his
relationship with Souhlas and his relationship with Chopin--the
implication presumably being that if he were friends with both
men then Souhlas's complaint could not be meritorious since
Judge Porteous would have no more incentive to be partial to
Chopin than to be partial to Souhlas.\640\ However, not only is
this argument indefensible even if it were true; but Souhlas
testified at a deposition that he was not a ``friend'' of Judge
Porteous. Souhlas never went to lunch or dinner with Judge
Porteous, never traveled with Judge Porteous on any trips, did
not go to his swearing-in, had never been to Judge Porteous's
house, had never had Judge Porteous to his house, had never
invited Judge Porteous to his annual ``hoe-downs'' (events to
which he invited a broad swath of the New Orleans legal
community), and had never met Judge Porteous's wife--in fact,
did not even know her name.\641\
---------------------------------------------------------------------------
\640\This is similar to Judge Porteous's line of questioning of
Mole at the Fifth Circuit Hearing, in which he pointed out that
Gardner, Lifemark's attorney, also went to Las Vegas as part of his
son's bachelor party celebration, just as Amato did.
\641\Souhlas Dep. at 18-21 (Ex. 185).
---------------------------------------------------------------------------
Thus, as he did in the Liljeberg case, Judge Porteous, when
faced with allegations that would threaten to disclose his
relationship with parties and attorneys who had given him
things of value, handled the motion in a manner calculated to
seal off further inquiry into those relationships. He disclosed
no pertinent material facts about his relationship with Chopin,
failed to address the discrete allegations known and raised by
the moving counsel, and made deceptive statements that
distorted the factual record as to his relationship with the
attorney at issue.\642\ By so distorting the record, Judge
Porteous assured affirmance on appeal of his denial of the
recusal motion, and a victory below for Chopin. Souhlas's
clients were never informed by the Judge who denied them
compensation for their serious injuries that he was a close
friend and frequent lunch guest of the defendant's lawyer
Chopin and had gone on a hunting trip with him while the case
was pending and shortly prior to trial; nor were they informed
that Judge Porteous had been a house guest of the defendant's
expert witness, whose credibility was at issue.\643\
---------------------------------------------------------------------------
\642\In addition, the positions taken by counsels in the respective
cases are remarkably similar: they attacked the moving party while
offering no facts, even in response to specific allegations, and each
counsel left it up to Judge Porteous to decide what would be disclosed.
Chopin wrote, for example, that Souhlas ``vituperatively attacked the
Court and its integrity,'' and characterized plaintiffs' claims as
``reprehensible.'' Similarly, the Liljebergs characterized Lifemark's
motion as containing ``unsubstantiated innuendo'' in support of a
``scurrilous conclusion.'' Chopin, like counsel for the Liljebergs,
offered no factual explanations, but argued that the relationship was
not proven. Chopin wrote, for example: ``[P]laintiffs do not even
attempt to offer any support for their new allegations.'' [Defendant's]
Memorandum in Opposition to Plaintiffs' Motion for New Trial and/or
Motion to Recuse at 7, Turner v. Pleasant, Civ. No. 2:01-cv-03572-GTP
(E.D. La.), Feb. 17, 2004 (Ex. 179(e)). The counsel for the Liljebergs
wrote: ``Lifemark's motion includes no evidence whatsoever pertaining
to the Court's alleged affinity for [counsels] . . .'' Memorandum in
Opposition to Lifemark's Motion to Recuse at 2, Lifemark Hospitals of
La., Inc. v. Liljeberg Enterprises, Inc., No. 93-1794 (E.D. La.), Oct.
15, 1996 (Ex. 53).
\643\While Judge Porteous's hunting trips may superficially call to
mind the duck-hunting trip that Justice Scalia and Vice President
Cheney attended together while the case Cheney v. U.S. Dist. Court for
Dist. of Columbia, No. 03-475 (Sup. Ct.) was pending, the situations
are materially different. Vice President Cheney was named in an
institutional capacity only, not in his individual capacity. As Justice
Scalia explained:
Richard Cheney's name appears in this suit only because he
was the head of a Government committee that allegedly did
not comply with the Federal Advisory Committee Act . . .
and because he may, by reason of his office, have custody
of some or all of the Government documents that the
plaintiffs seek. If some other person were to become head
of that committee or to obtain custody of those documents,
the plaintiffs would name that person and Cheney would be
dismissed, and it was the prerogatives of the Office of the
---------------------------------------------------------------------------
Vice President that were at stake.
Justice Scalia noted that the Vice President was represented by
Government lawyers and that throughout the litigation, the Vice
President's position had been described as the position of ``the
government.'' Cheney v. U.S. Dist. Court for Dist. of Columbia, 541
U.S. 913, 918 (2004) (Scalia, J., denying recusal motion). In contrast,
Diamond and Rowan had substantial personal financial interests at stake
in pending and future cases before Judge Porteous at times when Judge
Porteous accepted their offers to spend money on him--money that came
from the company treasuries and were expended in pursuit of their
business interests.
Moreover, the fact of the Scalia-Cheney hunting trip was publicly
disclosed and was certainly known to all counsels in the case before
Justice Scalia. In contrast, there was a concerted and sustained effort
to keep Judge Porteous's hunting trips a secret from litigants who
would have reason to believe their interests before the court might be
affected.
It should also be kept in mind that there are unique practical,
structural considerations to recusal at the Supreme Court level. As to
the notion that he should err on the side of recusal, Justice Scalia
explained:
That might be sound advice if I were sitting on a Court of
Appeals. . . . There, my place would be taken by another
judge, and the case would proceed normally. On the Supreme
Court, however, the consequence is different: The Court
proceeds with eight Justices, raising the possibility that,
by reason of a tie vote, it will find itself unable to
resolve the significant legal issue presented by the case.
. . . Moreover, granting the motion is (insofar as the
outcome of the particular case is concerned) effectively
the same as casting a vote against the petitioner.
Id. at 915. In contrast, there was absolutely no structural impediment
to Judge Porteous's recusing himself. He could have easily been
replaced by another district judge who had not accepted things of value
from Diamond or Rowan.
G. Disclosures of Trips Starting in 2005
1. Financial Disclosure Reports
Judge Porteous did not disclose the 2000, 2001, or 2003
Diamond hunting trips on his Financial Disclosure Reports, nor
did he disclose his 2002 Rowan hunting trip.
In his report for calendar year 2004 (filed May 12, 2005),
Judge Porteous reported the 2004 Rowan hunting trip as a
``gift'' valued at $1000,\644\ and, in his report for 2006
(filed May 14, 2007), he reported the 2006 Rowan hunting trip
as a ``gift'' valued at $800.\645\ By 2005, Judge Porteous knew
he was under a criminal investigation.
---------------------------------------------------------------------------
\644\Judge Porteous's Financial Disclosure Report (2004) (Ex.
110(a)).
\645\Judge Porteous's Financial Disclosure Report (2006) (Ex.
112(a)).
---------------------------------------------------------------------------
In each of his Reports for calendar years 2005 (filed July
24, 2006),\646\ 2006 (filed May 14, 2007)\647\ and 2007 (filed
May 9, 2008),\648\ Judge Porteous reported the respective
Diamond hunting trips as a ``gift,'' each valued at $1,000.
---------------------------------------------------------------------------
\646\Judge Porteous's Financial Disclosure Report (2005) (Ex.
111(a)).
\647\Judge Porteous's Financial Disclosure Report (2006) (Ex.
112(a)).
\648\Judge Porteous's Financial Disclosure Report (2007) (Ex. 113).
---------------------------------------------------------------------------
2. Judge Porteous's Only Disclosure of Diamond Hunting Trips
In May 2005, the case of Pioneer Natural Resources, Inc. v.
Diamond Offshore\649\ was filed. It was originally assigned to
Judge Ivan L. R. Lamelle. In July 2007, the case was reassigned
to Judge Porteous. On September 26, 2007, Judge Porteous made a
disclosure to both counsels indicating that he had been on
Diamond hunting trips, that he wanted the attorneys to consult
with their clients and affirmatively represent they did not
object to his continuing to preside over that case. \650\
---------------------------------------------------------------------------
\649\Case No. 2:05-cv-00224-DEK. See PACER Docket Report (Ex.
180(l)).
\650\This event is noted in the docket entries for September 26,
2007 reads as follows:
ORDERED that counsel notify Clerk of Court by 10/9/2007
4:00 PM if their clients consent to the undersigned
continuing to handle this matter. FURTHER ORDERED that
failure to notify the Clerk shall result in the
---------------------------------------------------------------------------
undersigned's recusal from this matter.
PACER Docket Report (Ex. 180(l)).
This 2007 disclosure, occurring after DOJ had sent its
complaint letter to the Fifth Circuit, is the only known
instance of Judge Porteous having informed counsel of having
taken hunting trips paid for by Diamond or Rowan.\651\
---------------------------------------------------------------------------
\651\In fact, even this disclosure was not entirely complete. On
the 2007 Diamond hunting trip, the attorney representing Diamond in the
Pioneer case was also in attendance. This fact was not disclosed to
Pioneer's counsel.
---------------------------------------------------------------------------
XIV. JUDGE PORTEOUS'S CONDUCT IN RELATION TO THE ``GIFT BAN''
PROVISIONS OF FEDERAL LAW
A. The Statute
At all pertinent times, the applicable Federal law, 5
U.S.C. Sec. 7353(a)(2) (the Ethics Reform Act of 1989\652\),
provided:
---------------------------------------------------------------------------
\652\Ethics Reform Act of 1989, Pub. L. No. 101-194, Sec. Sec. 301
and 303, 103 Stat. 1716 (1989).
---------------------------------------------------------------------------
[Except as permitted by agency ethics regulations] no . . .
officer or employee of the . . . judicial branch shall solicit
or accept anything of value from a person--. . . whose
interests may be substantially affected by the performance or
nonperformance of the individual's official duties.
Thus, to determine whether it was acceptable for Judge
Porteous to accept ``anything of value'' from attorneys and
parties with matters before him, it is necessary to examine the
Judicial Conference's regulations implementing this provision.
B. The Regulations
The Gift Regulations promulgated by the Judicial Conference
of the United States\653\ track the statutory prohibition, but
address two separate circumstances--a Federal judge's
solicitation of a gift and a judge's acceptance of a gift.
---------------------------------------------------------------------------
\653\Unless otherwise noted, references to the ``Gift Regulations''
refer to the Regulations of the Judicial Conference of the United
States under Title III of the Ethics Reform Act of 1989 Concerning
Gifts that were promulgated in 1997. (Ex. 364). The regulations
discussed in the text were in effect from August 1997 through August
2003 and thus cover the period when most of the conduct at issue
occurred. These Gift Regulations were revised in 2003 in ways that are
not relevant to the substance of the discussion. See 2003 Gift
Regulations (Ex. 365).
---------------------------------------------------------------------------
The term ``gift'' is broadly defined, with narrow
exceptions, one being for ``modest items of food.''
Sec. 3. Definition of ``Gift.''
``Gift'' means any gratuity, entertainment,
forbearance, bequest, favor, the gratuitous element of
a loan, or other similar item having monetary value but
does not include . . . modest items of food and
refreshments, such as soft drinks, coffee and donuts,
offered for present consumption other than as part of a
meal.\654\
---------------------------------------------------------------------------
\654\There are other narrow exceptions, such as plaques,
certificates, and trophies, and certain rewards and prizes, including
random drawings.
As to the solicitation of a gift, the Gift Regulations are
unambiguous in prohibiting a judge from soliciting things of
value from attorneys or parties with matters in front of him.
---------------------------------------------------------------------------
Those regulations provide:
Sec. 4. Solicitation of Gifts by a Judicial Officer or
Employee.
(a) A judicial officer . . . shall not solicit a gift
from any person who is seeking official action from or
doing business with the courts (or other employing
entity), or from any other person whose interests may
be substantially affected by the performance or
nonperformance of the judicial officer['s] official
duties, including in the case of a judge any person who
has come or is likely to come before the judge.\655\
---------------------------------------------------------------------------
\655\There is no material difference in this definition in the 2003
Regulations.
As to the acceptance of a gift, the regulations permit a
judge to receive only certain gifts. Section 5 of the
---------------------------------------------------------------------------
regulations provides:
Sec. 5. Acceptance of Gifts by a Judicial Officer or
Employee; Exceptions.
A judicial officer or employee shall not accept a gift
from anyone except for----
* * *
(c) Lordinary social hospitality;
(d) La gift from a relative or friend, for a special
occasion, such as a wedding, anniversary, birthday, and
the gift is fairly commensurate with the occasion and
the relationship;
(e) La gift from a relative or close personal friend
whose appearance or interest in a case would in any
event require that the officer or employee take no
official action with respect to the case;
* * *
(h) Lany other gift only if:
* * *
(2) Lin the case of a judge, the donor is not a
party or other person who has come or is likely to come
before the judge or whose interests may be
substantially affected by the performance or
nonperformance of his or her official duties[.]\656\
---------------------------------------------------------------------------
\656\The other section 5 exceptions to the Gift Regulations have no
application to the facts of this inquiry such as certain gifts incident
to a public speaking engagements, or invitations to bar-related
functions or activities devoted to the improvement of the law, the
legal system, or the administration of justice.
C. Application of the Gift Ban Statute and Regulations to Judge
Porteous's Conduct
1. Solicitation and/or Acceptance of Cash, Other Things of Value, and
Overnight Trips (other than Meals at Restaurants)
Judge Porteous's solicitation and acceptance of things of
value from attorneys and parties with matters before him are
proscribed by statute and regulations because they are ``things
of value'' given by attorneys and parties ``whose interests may
be substantially affected by the performance or nonperformance
of the [Judge's] official duties.'' As to some items--such as
Judge Porteous's soliciting money from Amato during the
pendency of a case, accepting the payments for his Las Vegas
hotel room and payment towards his son's bachelor party dinner
from Creely, and accepting hunting trips from Diamond and
Rowan--the application of the statute and regulations is
straightforward. None of the section 5 exceptions permitted
Judge Porteous to accept those items while he had cases with
those attorneys or parties in front of him.\657\
---------------------------------------------------------------------------
\657\Section 5(d) provides an exception to permit a judge to accept
a ``gift from a relative or friend, for a special occasion, such as a
wedding, anniversary or birthday, if the gift is fairly commensurate
with the occasion and the relationship.'' Creely's payment of close to
$1,000 for Judge Porteous's hotel accommodations as a contribution
towards his son's bachelor party dinner is not ``fairly commensurate
with the occasion.'' Section 5(e) permits judges to accept a ``gift
from a relative or close personal friend whose appearance or interest
in a case would in any event require that the officer or employee take
no official action with respect to the case.'' This provision appears
to permit a Federal judge to accept a gift if, upon accepting the gift,
the judge would thereafter recuse himself or herself, that is, ``take
no official action with respect to the case.'' Indeed Judge Porteous
could have accepted the ``gifts'' from Creely and Amato. Section 5(h)
permits judges to accept ``any other gift,'' but only if ``the donor is
not a party or other person who has come or is likely to come before
the judge or whose interests may be substantially affected by the
performance or nonperformance of his or her official duties.'' In this
case, the donor--an attorney or a party (Rowan or Diamond)--would
constitute a ``party or other person who has come or is likely to come
before the judge or whose interests may be substantially affected by
the performance or nonperformance of his or her official duties.''
---------------------------------------------------------------------------
2. Meals at Restaurants
Judge Porteous accepted hundreds of meals from attorneys
and parties with matters pending before him. Unless there is an
exception that would allow him to accept these meals, the
statutory prohibition against accepting ``anything of value''
from attorneys and parties ``whose interests may be
substantially affected by the performance or nonperformance of
the [Judge's] official duties'' prohibits his acceptance of
these meals. This conduct will be discussed in light of
possible exceptions.
The exception in the definition of ``gift'' for ``modest
items of food.'' The definition of ``gift'' in the regulations
provides an exception for ``modest items of food and
refreshments such as soft drinks, coffee and donuts, offered
for present consumption other than as part of a meal.'' This
provision--explicitly permitting a judge to accept light
refreshments (even from attorneys and parties with matters
before him)--would be unnecessary if a judge were otherwise
free to accept expensive meals at high-end restaurants paid for
by parties or attorneys with matters before him. Moreover, a
lunch consisting of food and drinks at a restaurant such as
Ruth's Chris Steak House is not, under any interpretation, a
``modest item of food . . . such as soft drinks, coffee and
donuts.''
The exception under section 5(c) of the regulations for
``ordinary social hospitality.'' Section 5 of the regulations
provides that ``[a] judicial officer or employee shall not
accept a gift from anyone except for [certain exceptions].''
One of those exceptions is set forth in Section 5(c), which
permits a judge to accept ``ordinary social hospitality.'' The
term ``ordinary social hospitality'' is not defined in the
Judicial Conference regulations, but is similar to and conveys
the same meaning in context as the phrase ``personal
hospitality of any individual'' used in the Ethics in
Government Act. The latter phrase is defined as ``hospitality
extended for a nonbusiness purpose by an individual, not a
corporation or organization, at the personal residence of that
individual or his family or on property of facilities owned by
that individual or his family.''\658\ If ``ordinary social
hospitality'' included expensive meals at restaurants, then
this definition would subsume and render meaningless the narrow
carve-out in the definition for ``soft drinks, coffee and
donuts.'' It would make little sense for the regulations to
explicitly permit a judge to accept donuts from counsel in a
meeting during trial when a different provision would permit
counsel to take that same judge to an expensive restaurant
during the trial.
---------------------------------------------------------------------------
\658\The Ethics and Government Act defines ``personal hospitality
of any individual'' as ``hospitality extended for a nonbusiness purpose
by an individual, not a corporation or organization, at the personal
residence of that individual or his family or on property of facilities
owned by that individual or his family.'' Ethics in Government Act,
Section 109(14), codified at Title 5, United States Code, Appx. 4, Sec.
109(14). Such ``personal hospitality'' is not required to be disclosed
in the Financial Disclosure Reports.
---------------------------------------------------------------------------
As Professor Geyh testified, Judge Porteous's acceptance of
the meals violated both the gift rules (because they were not
``ordinary social hospitality'') as well as other ethical
canons that prohibit his exploitation of his position for
personal gain:
Codes of conduct permit judges to accept ``social
hospitality'' without running afoul of restrictions on
the gifts judges may receive, and friends and former
colleagues who take each other to lunch can be a
conventional form of social hospitality. This, however,
was not ordinary ``social hospitality.'' These lawyers
reportedly paid Judge Porteous's lunch bills countless
times for years with no meaningful reciprocation by the
judge. Moreover, this one-way payment practice appears
to be what Judge Porteous wanted and expected. Former
State Judge Ronald Bodenheimer testified that when
Bodenheimer became a judge, Porteous told him that,
once a judge, he would ``never have to buy lunch again.
. . . There will always be somebody to take you to
lunch.'' In other words, Judge Porteous was trading on
his position as a judge in contravention of the ethical
principle that a judge should not ``lend the prestige
of judicial office to advance the private interests of
the judge.''\659\
---------------------------------------------------------------------------
\659\Prof. Geyh TF Hrg. IV at 8-9 (written statement at 2-3).
Furthermore, Professor Geyh explained there is no such thing as
``ordinary social hospitality'' extended by a corporation--an entity
that is not in the business of making friends but is instead in the
business of making money. Prof. Geyh TF Hrg. IV at 16 (written
statement at 10). This discussion does not address the circumstance
where a judge and an attorney alternate paying for meals on a rotating
basis. As Prof. Geyh stressed, and Judge Porteous himself stated, Judge
Porteous sought and expected the attorneys to pay for his meals--not
the other way around--and in fact he virtually never reciprocated.
---------------------------------------------------------------------------
D. Actions by Judge Porteous That Appear to Violate Federal Law
The following actions by Judge Porteous would appear to
violate the gift ban of 5 U.S.C. Sec. 7353, and the Judicial
Conference regulations promulgated thereunder:
1) LJudge Porteous's solicitation and acceptance of
approximately $2500 from Amato in June or July 1999
while the Liljeberg case was pending. At that time,
Amato had a financial interest in the resolution of the
Liljeberg case that would have been ``substantially
affected by the performance of [Judge Porteous's]
official duties.''
2) L Judge Porteous's acceptance of Creely's payment
for his hotel room and for a portion of his son's
bachelor party dinner in Las Vegas in May 1999 while
the Liljeberg case was pending. At that time, Creely,
as Amato's partner, had a financial interest in the
resolution of the Liljeberg case that would have been
``substantially affected by the performance of [Judge
Porteous's] official duties.''
3) LJudge Porteous's acceptance of Creely's and Amato's
payment of approximately $1,500 to celebrate Judge
Porteous's 5 years on the bench in late 1999 while the
Liljeberg case was pending. At that time, Amato and
Creely had an interest in the resolution of the
Liljeberg case that would have been ``substantially
affected by the performance of [Judge Porteous's]
official duties.''
4) LJudge Porteous's acceptance of hunting trips paid
for by Diamond without disclosure or recusal. In at
least three instances, Judge Porteous accepted Diamond-
sponsored trips while Diamond had cases pending in
front of him and thus had interests which may have been
``substantially affected by the performance of [Judge
Porteous's] official duties.'' Even in the situations
where a Diamond case was not actually pending at the
time of the hunting trip, based on the routine and
predictable nature of his being assigned cases
involving Diamond, Judge Porteous would have known that
he was accepting something of value from an entity
``whose interests may be substantially affected'' in
subsequent litigation that would be assigned to
him.\660\ At a minimum, after having attended trips and
accepted value from Diamond, Judge Porteous should have
disclosed his receipt of the trips to counsel (and
recused himself if counsel sought recusal).
---------------------------------------------------------------------------
\660\Judge Haik, who also attended the Diamond hunting trips,
immediately recused himself after the first trip from hearing cases
where Diamond was a party. See Affidavit of Judge Richard Haik (Ex.
186).
5) LJudge Porteous's acceptance of three hunting trips
paid for by Rowan. In connection with the 2004 trip,
when the Hanna case was pending, Rowan had an interest
in the resolution of that case which would have been
``substantially affected by the performance of Judge
Porteous's official duties.'' Moreover, based on the
routine and predictable nature of his being assigned
Rowan cases, Judge Porteous would have known that he
was accepting something of value from an entity ``whose
interests may be substantially affected'' in subsequent
litigation that would be assigned to him. At a minimum,
after having attended trips and accepted value from
Diamond, Judge Porteous should have disclosed his
receipt of the trips to counsel (and recused himself if
---------------------------------------------------------------------------
counsel sought recusal).
6) LJudge Porteous's acceptance from various attorneys
and parties of hundreds of meals at high-end
restaurants while those attorneys had matters pending
before him.
XV. THE DOJ'S DECISION NOT TO PROSECUTE JUDGE PORTEOUS
As noted at the outset, DOJ decided not to prosecute Judge
Porteous. Several observations are in order.
First, the nature of Congress's determination whether to
impeach is fundamentally different from DOJ's decision whether
to prosecute. Congress does not decide guilt or innocence with
reference to a criminal statute. Rather, it is for Congress to
make what is in essence a ``fitness for office'' determination.
Congress alone has the power to remove an unfit Federal judge,
and conduct that renders a judge unfit may not necessarily
violate a criminal statute.
Second, Congress has an independent responsibility to
review the evidence and cannot rely on DOJ's assessment of what
the evidence reveals. Thus, just as the House heard the
evidence involving Judge Samuel B. Kent, and before that of
Judges Walter Nixon and Robert Collins, and did not rely solely
on the fact that each of those judges had been criminally
convicted, so it is proper for Congress to consider and review
the evidence that relates to the conduct of Judge Porteous,
even though some of that evidence (but not all) was considered
by the Department of Justice.
Third, even though aspects of Judge Porteous's conduct may
appear to support a criminal prosecution, the Department faced
numerous practical obstacles that would necessarily have
impacted its considerations as to whether prosecution was in
order for certain categories of conduct. One problem in
particular involved the statute of limitations--a potentially
insurmountable hurdle in a criminal prosecution, but not a bar
to impeachment. Some of the most corrupt conduct, such as Judge
Porteous's relationship with the Marcottes and his initiation
of the ``curatorship'' scheme with Creely and Amato, was time-
barred by the statute of limitations. Nonetheless, such
conduct, even if it cannot be used to support a Federal
criminal prosecution, is profoundly relevant to the
determination of whether Judge Porteous should remain a Federal
judge.
Fourth, another problem facing the DOJ was the existence of
various procedural and evidentiary rules that would have
affected the DOJ's ability to demonstrate before a jury the
complete picture of Judge Porteous's conduct. The four Articles
of Impeachment involve different types of conduct, in different
spheres of activity, and at different times. For example, even
assuming no statute of limitations issues existed, a bankruptcy
fraud charge could not necessarily have been brought in the
same proceeding as a corruption charge; likewise, evidence of
Judge Porteous's relationship with the Marcottes would not
necessarily have been admissible in a trial on bankruptcy
issues.\661\
---------------------------------------------------------------------------
\661\These considerations were touched on by the panel of legal
scholars who testified at the December 15, 2009 Task Force Hearing. Ms.
Jackson Lee asked the panel to opine on the DOJ decision not to seek
prosecution. Professor Michael Gerhardt, University of North Carolina
School of Law, responded: ``I think it has no impact. I think it is of
no real consequence.'' Professor Gerhardt stressed that impeachment is
not a criminal proceeding, the burden is different, the House can
consider different evidence, and it would not be bound in any event if
there were a conviction, as the House must make an independent judgment
as to the evidence. Gerhardt TF Hrg. IV at 41. Professor Akhil Reed
Amar, Yale Law School, agreed. He noted the different purposes of
impeachment and criminal prosecution, testifying that impeachment
``remov[es] a position that the judge should never should have had in
the first place. It is not like putting someone in prison, taking away
their very life. It is not even retributive.'' Amar TF Hrg. IV at 41.
Professor Charles Geyh, Indiana University Maurer School of Law,
concurred, specifically noting that the statute of limitations would
impact DOJ but not Congress. Geyh TF Hrg. IV at 41-42.
---------------------------------------------------------------------------
Fifth, the Impeachment Task Force has interviewed new
witnesses and uncovered new evidence that simply was not
considered by the Department, including evidence related to
conduct that was time-barred for criminal prosecution. For
example, it obtained depositions and public testimony from
Louis Marcotte and Lori Marcotte, corroborating court records,
as well as the depositions of their employees and associates
relating to the Marcottes' relationship with Judge Porteous.
Additionally, the Task Force obtained and considered the
curatorship records that corroborate and expanded the scale of
the financial relationship with Creely and Amato that was not
otherwise developed by the DOJ; it obtained the recusal hearing
transcript in connection with the Liljeberg case; and, finally,
the Task Force and the Committee had the benefit of the Fifth
Circuit hearings which expanded on the evidence available to
the DOJ.
XVI. CONCLUSION
The following language from the House Report accompanying
the Judge Walter L. Nixon, Jr., and Samuel B. Kent Articles of
Impeachment aptly sets out the core principles underlying and
justifying the Impeachment Resolution against Judge Porteous:
The [House's] role is not to punish [Judge Porteous],
but simply to determine whether articles of impeachment
should be brought. Under our Constitution, the American
people must look to the Congress to protect them from
persons unfit to hold high office because of serious
misconduct that has violated the public trust. Where,
as here, the evidence overwhelmingly establishes that a
Federal judge has committed impeachable offenses, our
duty requires us to bring articles of impeachment and
to try him before the United States Senate.\662\
---------------------------------------------------------------------------
\662\Walter Nixon Impeachment Report, at 33-34.
---------------------------------------------------------------------------
XVII. COMMITTEE CONSIDERATION
On January 27, 2010, the Committee met in open session and
ordered the resolution, H. Res. 1031, favorably reported
without amendment by a rollcall vote of 24 to 0, a quorum being
present.
XVII. COMMITTEE VOTES
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall votes took place during the Committee's
consideration of H. Res. 1031:
1. Impeachment Article 1. Approved 29 to 0.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman...................................................... X
Mr. Boucher..................................................... X
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters......................................................
Mr. Delahunt....................................................
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Gutierrez...................................................
Ms. Baldwin..................................................... X
Mr. Gonzalez....................................................
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Ms. Wasserman Schultz........................................... X
Mr. Maffei...................................................... X
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble.......................................................
Mr. Gallegly....................................................
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Issa........................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks......................................................
Mr. Gohmert..................................................... X
Mr. Jordan...................................................... X
Mr. Poe......................................................... X
Mr. Chaffetz....................................................
Mr. Rooney...................................................... X
Mr. Harper...................................................... X
-----------------------------------------------
Total....................................................... 29 0
----------------------------------------------------------------------------------------------------------------
2. Impeachment Article 2. Approved 28 to 0.
ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters......................................................
Mr. Delahunt....................................................
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Gutierrez...................................................
Ms. Baldwin..................................................... X
Mr. Gonzalez.................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Ms. Wasserman Schultz........................................... X
Mr. Maffei...................................................... X
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble.......................................................
Mr. Gallegly....................................................
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Issa........................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks......................................................
Mr. Gohmert..................................................... X
Mr. Jordan......................................................
Mr. Poe......................................................... X
Mr. Chaffetz....................................................
Mr. Rooney...................................................... X
Mr. Harper...................................................... X
-----------------------------------------------
Total....................................................... 28 0
----------------------------------------------------------------------------------------------------------------
3. Impeachment Article 3. Approved 23 to 0.
ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman......................................................
Mr. Boucher..................................................... X
Mr. Nadler...................................................... X
Mr. Scott.......................................................
Mr. Watt........................................................ X
Ms. Lofgren.....................................................
Ms. Jackson Lee................................................. X
Ms. Waters......................................................
Mr. Delahunt....................................................
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley.....................................................
Ms. Chu......................................................... X
Mr. Gutierrez................................................... X
Ms. Baldwin..................................................... X
Mr. Gonzalez....................................................
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
Mr. Maffei...................................................... X
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble.......................................................
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Issa........................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks......................................................
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe......................................................... X
Mr. Chaffetz....................................................
Mr. Rooney......................................................
Mr. Harper...................................................... X
-----------------------------------------------
Total....................................................... 23 0
----------------------------------------------------------------------------------------------------------------
4. Impeachment Article 4. Approved 25 to 0, with one Member
passing.
ROLLCALL NO. 4
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman......................................................
Mr. Boucher..................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................
Ms. Lofgren.....................................................
Ms. Jackson Lee................................................. X
Ms. Waters......................................................
Mr. Delahunt....................................................
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Gutierrez................................................... X
Ms. Baldwin..................................................... X
Mr. Gonzalez....................................................
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
Mr. Maffei...................................................... X
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble.......................................................
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Issa........................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks......................................................
Mr. Gohmert.....................................................
Mr. Jordan...................................................... X
Mr. Poe......................................................... X
Mr. Chaffetz....................................................
Mr. Rooney......................................................
Mr. Harper...................................................... X
-----------------------------------------------
Total....................................................... 25 0
----------------------------------------------------------------------------------------------------------------
5. Motion to report the resolution. Approved 24 to 0.
ROLLCALL NO. 5
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman......................................................
Mr. Boucher..................................................... X
Mr. Nadler...................................................... X
Mr. Scott.......................................................
Mr. Watt........................................................ X
Ms. Lofgren.....................................................
Ms. Jackson Lee................................................. X
Ms. Waters......................................................
Mr. Delahunt....................................................
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Gutierrez................................................... X
Ms. Baldwin..................................................... X
Mr. Gonzalez....................................................
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
Mr. Maffei...................................................... X
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble.......................................................
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Issa........................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks......................................................
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe......................................................... X
Mr. Chaffetz....................................................
Mr. Rooney......................................................
Mr. Harper...................................................... X
-----------------------------------------------
Total....................................................... 24 0
----------------------------------------------------------------------------------------------------------------
English
Afrikaans
Albanian
Amharic
Arabic
Armenian
Azerbaijani
Basque
Belarusian
Bengali
Bosnian
Bulgarian
Catalan
Cebuano
Chichewa
Chinese (Simplified)
Chinese (Traditional)
Corsican
Croatian
Czech
Danish
Dutch
Esperanto
Estonian
Filipino
Finnish
French
Frisian
Galician
Georgian
German
Greek
Gujarati
Haitian Creole
Hausa
Hawaiian
Hebrew
Hindi
Hmong
Hungarian
Icelandic
Igbo
Indonesian
Irish
Italian
Japanese
Javanese
Kannada
Kazakh
Khmer
Korean
Kurdish (Kurmanji)
Kyrgyz
Lao
Latin
Latvian
Lithuanian
Macedonian
Malagasy
Malay
Malayalam
Maltese
Maori
Marathi
Mongolian
Myanmar (Burmese)
Nepali
Norwegian
Pashto
Persian
Polish
Portuguese
Punjabi
Romanian
Russian
Samoan
Scottish Gaelic
Serbian
Sesotho
Shona
Sindhi
Sinhala
Slovak
Slovenian
Somali
Spanish
Sudanese
Swahili
Swedish
Tajik
Tamil
Telugu
Thai
Turkish
Ukrainian
Urdu
Uzbek
Vietnamese
Welsh
Xhosa
Yiddish
Yoruba
Zulu
