A federal judge refused Thursday to throw out a massive racketeering indictment against alleged New Orleans crime boss Telly Hankton and several of his cohorts, saying defense attorneys failed to prove their claim that a grand jury had been influenced by a lengthy newspaper article that predicted the federal charges.
U.S. District Judge Martin Feldman also declined to sanction two FBI agents who met with journalists a few days before the article was published, describing their limited comments as “minor lapses” that didn’t prejudice the grand jurors who handed up a 22-count indictment.
The article, which appeared on the front page of The Times-Picayune in October 2012, relied in part on unnamed law enforcement sources, whom defense attorneys sought to unmask this week by subpoenaing two reporters who now work for The New Orleans Advocate.
The reporters, John Simerman and Gordon Russell, were compelled to testify during an unusual evidentiary hearing, but Feldman ruled that their sources were protected by the reporters’ First Amendment rights.
The judge weighed those protections against the rights of defendants pursuing a claim of misconduct on the part of federal officials.
“It’s a very serious and tenuous balance,” Feldman said. “It’s not an easy one to make — and not one I necessarily agree with.”
Defense attorneys for the Hankton organization argued the charges should be dismissed because they said authorities violated grand jury secrecy rules and, in an effort to inflame public opinion, leaked details of a wide-ranging investigation into Hankton’s alleged criminal enterprise.
FBI agents Richard “Chip” Hardgrave and Keith B. Burriss testified Wednesday that they said too much during their 35-minute meeting with the reporters, which they said they arranged out of concern the article could jeopardize their ability to make several arrests. But the agents denied divulging details of the grand jury investigation or the impending indictment, and Feldman ruled “there is simply no indication, beyond speculation, that the agents’ statements substantially influenced the grand jury’s decisions.”
Feldman said he was most concerned by the unexplained appearance of a copy of the Hankton article in the grand jury room. But unlike jurors impaneled for a trial, grand jurors are not prohibited from reading the newspaper, said Assistant U.S. Attorney Elizabeth Privitera, who added that the panel looking at Hankton had heard months of detailed testimony not included in the article.
The Hankton crew, she added, has only itself to blame for any inflammation of public opinion. “It is solely on their shoulders,” Privitera said, accusing the jumpsuit-clad men at the defense table of “brazen murders that they committed over and over and over” again. The indictment includes allegations of four murders, drug dealing, money laundering and obstruction of justice, among other crimes.
Questions remain about how the article made its way into the grand jury room, but Feldman said “there is nothing to establish that the grand jury’s independence was infringed by government misconduct.”
“This appears to have been an isolated incident in the course of a nearly yearlong investigation that included testimony from dozens of witnesses,” Feldman said.
The ruling followed a second day of testimony and an encore effort by defense lawyers to identify unnamed sources in the Hankton article. With Russell on the stand Thursday, Arthur “Buddy” Lemann III, an attorney for Hankton, renewed his argument that he needed to know who the sources were to make a “proper presentation” of his motion to dismiss the indictment.
The judge, however, said Lemann’s request was rooted in “rank speculation.” He also rebuffed defense efforts to explore any connection between alleged government misconduct in the Hankton case and the online commenting scandal that led to U.S. Attorney Jim Letten’s resignation in late 2012.
“Mr. Lemann, your argument could justify me letting you go to Jupiter to find some helpful source,” Feldman said at one point.
The possibility that Simerman and Russell might be held in contempt if they refused to name confidential sources was greatly diminished Wednesday after Feldman limited defense attorneys to quizzing the reporters about their talk with the FBI agents. But for a moment Thursday, Russell faced a question about the sources he seemed unwilling to answer — and that Feldman indicated he would allow before abruptly reversing course.
Billy Sothern, an attorney for Hankton’s cousin, Thomas Hankton, had asked Russell to reveal whether any of the unnamed sources had been federal officials, such as assistant U.S. attorneys. Lori Mince, an attorney being paid by The Times-Picayune to represent the reporters, rose to her feet but was overruled without even proffering an objection.
Russell gave an indirect answer, saying he wasn’t sure he agreed with the premise of Sothern’s question. By the time Sothern retrieved some documents from the defense table, Feldman apparently had undergone a change of heart.
Sothern rephrased his question: Were any of the unnamed sources cited throughout the October 2012 article federal officials? Mince objected and, this time, was permitted to cite case law she said prevented a “20-questions style” approach that would effectively narrow down the pool of potential sources. Feldman sustained the objection, saying the question was “overly broad” and chiding Sothern for being ill-prepared to support his argument.
Feldman, who also serves on the U.S. Foreign Intelligence Surveillance Court, said he has a reputation “of not necessarily being a friend of the First Amendment.” But over the course of the hearing, he spoke of the importance of a free press, however grudgingly, and even complimented Simerman’s “good shoe leather,” reporting that spanned a period of several months and included dozens of sources — named and unnamed.
In his ruling to deny the motion to dismiss the indictment, the judge also mentioned “hard work by the reporter.”
Follow Jim Mustian on Twitter, @JimMustian.