IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-30084

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

ROBERT RICKS, also known as Ra-B Ricks, 

 Defendant - Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:16-CR-11-1

Before CLEMENT, GRAVES, and OLDHAM, Circuit Judges.

PER CURIAM:*

A jury found Robert Ricks guilty of several drug and gun crimes. He asks 

this court to overturn that verdict and quash his indictment because of alleged 

procedural errors. Finding no reversible error, we AFFIRM.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 22, 2019

Lyle W. Cayce

Clerk

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FACTS AND PROCEEDINGS

In February 2015, the New Orleans Police Department (NOPD) received 

a tip that someone named “Robbie” was dealing drugs out of a house at 1201 

Belleville Street. Robert Ricks lived there with his girlfriend Mandi Malbroue 

(Mandi) in a house owned by Mandi’s parents. 

NOPD officers conducted surveillance of the house. Officer Chantell

Long observed from a car. She saw Ricks engage in multiple hand-to-hand drug 

transactions and relayed that to nearby teams, who stopped the individuals 

immediately thereafter, discovering them to be in possession of heroin. 

As they approached the house to execute a warrant four days later,

officers observed Ricks completing another drug deal. In Ricks’s and Mandi’s

bedroom, officers discovered heroin, crack cocaine, powder cocaine, marijuana, 

a digital scale bearing drug residue, drug paraphernalia, $3,641 in cash, and a 

loaded handgun. 

Ricks and Mandi were arrested on state gun and drug charges. Mandi 

pleaded guilty to the drug charges but not to the gun charge. Ricks was 

charged, federally, with conspiracy to possess heroin and cocaine with the 

intent to distribute, possession of heroin and cocaine with the intent to 

distribute, possession of a firearm in connection with a drug-trafficking 

offense, and being a felon in possession of a firearm.

Prior to trial, Ricks moved to quash the indictment, alleging that federal 

agents had met with Mandi on two occasions and that, on both occasions, she 

admitted to owning the gun and the drugs. According to Ricks, the agents 

responded by threatening Mandi with federal charges if she testified in his 

defense. Ricks asserted that these threats would interfere with his ability to 

call a witness and violate his rights under the Fifth and Sixth Amendments, 

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“[i]f the government does not cure its interference . . . by granting Mandi 

immunity.”

The Government denied that Mandi had been threatened, arguing that 

agents had only cautioned her that, if she knowingly provided false testimony, 

she would risk prosecution for perjury. The Government then offered her 

statutory immunity, allowing her to testify without fear of prosecution on the 

drug and gun charges.

The district court entered an order giving Mandi immunity. The order 

stated that no information derived from her testimony could be used against 

her in any criminal case “except in a prosecution for perjury, [or] giving a false 

statement.” The court denied Ricks’s motion to quash as moot—presumably 

because of the immunity deal. 

Four days before trial, Ricks learned that Officer Long had been 

diagnosed with a brain tumor that affected her vision. Ricks moved for a 

continuance to investigate, urging that the evidence was potentially 

exculpatory, but the Government opposed the motion, asserting that the 

officer’s medical condition did not constitute exculpatory information and was 

irrelevant as the condition did not appear until months after the surveillance 

at issue. The Government noted that Officer Long’s testimony would be 

corroborated by significant evidence, including the testimony of other officers 

working surveillance with her and individuals who met with Ricks shortly 

before their arrests. The district court denied the continuance.

At trial, Officer Long testified about the surveillance, as well as about 

her medical condition. She denied having had any issues in February 2015 and 

identified Ricks as the individual she observed dealing drugs. Defense counsel 

questioned her about her condition and the onset of her symptoms. 

Individuals Officer Long observed engaging in hand-to-hand 

transactions testified at trial, admitting that they had been arrested for drug 

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possession on February 15, 2015, and that they had met with Ricks 

immediately prior to their arrests. Other officers working with Officer Long 

corroborated her testimony. Additionally, one of them testified that he had also 

participated in executing the search warrant and that the drugs were hidden 

among men’s clothing and behind a shoe rack containing men’s shoes. The 

powder cocaine was located near an identification card bearing Ricks’s name, 

and the card was covered in powder, indicating that it had been used to cut the 

drugs. The officer also stated that the gun was found hidden in a man’s sock in 

a drawer alongside some containers for men’s watches. Ricks identified himself 

as the owner of the cash found on the scene.

An individual named James Chapman testified that he had been

regularly using crack cocaine, which he bought from Ricks. Chapman saw 

Ricks selling drugs to others, introduced him to other dealers, and sometimes 

drove him to drug deals. A neighbor testified that he had seen Ricks dealing 

drugs on numerous occasions; he explained that Ricks and Mandi worked 

together. 

Cellphones seized during the search showed that, in the five days 

between the surveillance and search, Ricks had made or received more than 

500 phone calls, most of which lasted less than one minute and many of which 

occurred after midnight. Several contacts listed in Ricks’s phone contained the 

notation “sm” or “smk,” apparently meaning “smack,” slang for heroin. Ricks’s 

phone also had listed as a contact “Apple,” who was known to be a narcotics 

trafficker, as well as other contacts also known to be traffickers. Text messages 

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from Ricks’s phone revealed exchanges setting up drug deals and texts from 

Mandi referencing those deals and warning Ricks about police activity. 

Bureau of Alcohol, Tobacco, and Firearms Agent Anthony Calagna 

testified1 that, in January 2015, he began conducting video surveillance on the 

1200 block of Belleville Street related to another investigation, and that the 

video surveillance had captured Ricks conducting what appeared to be handto-hand drug transactions. He became involved in Ricks’s case after Ricks and 

Mandi were arrested, and he interviewed Mandi. Mandi told agents that the 

drugs and gun were hers, and she pleaded guilty to drug charges in state court, 

but the agents believed that Ricks and Mandi jointly owned the drugs and that 

Mandi was not being truthful. Additionally, at least in part because Mandi did 

not plead guilty to the gun charge, the agents suspected that the gun was not

hers. Mandi was not charged federally. 

Agent Calagna explained that, when he questioned Mandi, Mandi 

repeated that both the drugs and gun were hers. He specifically testified as 

follows:

Q: Did you ask [Mandi] about the drugs and gun found during the 

search outside of the grand jury?

A: I did.

Q: What did she say?

A: She said that the guns and the drugs were hers.

Q: Did she say – did she deny that they were [Ricks’s]?

A: No, she did not – well, initially, she did.

Q: Okay. What did you tell her?

A: We explained to her that we knew what she was doing. We 

knew that she was taking – attempting to take the charges for 

[Ricks]. We explained to her that if she was put into the grand 

jury and sworn under oath, that she’d be committing perjury in a 

federal grand jury.

 

1 The district court had ordered that each side sequester its witnesses, so Mandi was 

presumably not present to hear this testimony. 

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Q: Why did you believe that giving that testimony to the grand jury 

would be perjury?

A: Because based on the evidence we knew, the fact that she didn’t 

plead to the gun in Orleans Parish, and that we believed that 

Robert Ricks was also in control of those narcotics and the firearm.

Q: What happened after you told her that lying in the grand jury 

would be – could be a crime?

A: She broke down. She was crying. She told us that she just 

couldn’t do it. She couldn’t testify against [Ricks], that he’s the 

father of her child, but that she would cooperate on any other 

individuals in the 1200 block of Belleville and testify against them.

Q: Did you threaten that you would seek to charge her in the 

federal drug case if she didn’t change her story and say that the 

drugs were [Ricks]’s?

A: No, sir.

Q: Did you try to coerce her into saying that the drugs were 

[Ricks’s]?

A: No, sir.

Q: Did you coerce her into saying that the gun was [Ricks’s]?

A: No, sir.

Q: Was she called to testify before the grand jury?

A: She was not.

Q: Why not?

A: Because we knew that putting her in the grand jury knowing 

that she was lying was going to make her available to potential 

perjury charges, which we weren’t going to do to her.

Ricks renewed his motion to quash, urging that this testimony amounted 

to a threat to prosecute Mandi for perjury, rendering the immunity grant null. 

The district court denied the motion. 

Agent Calagna went on to say that he had listened to phone calls 

recorded at the Orleans Parish prison, including one between two individuals 

known as “Butter” and “Apple,” in which Butter directed Apple to collect money 

from Ricks. 

Defense counsel asked Agent Calagna whether he had also reviewed any 

of Ricks’s prison phone calls, and Agent Calagna responded that he had. 

Counsel then stated that the Government had not provided copies of Ricks’s 

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prison phone calls, argued that the calls likely showed that Ricks had denied 

any involvement in drug trafficking, and claimed that the records constituted

exculpatory Brady material. 

The Government responded that it had no discovery obligation relating 

to Ricks’s prison calls both because Ricks’s phone calls were irrelevant and 

because they were not in the Government’s custody or control. The call records 

were maintained in the parish prison facility, not the federal Bureau of 

Prisons, and although agents could log onto the parish prison system to review 

the calls, the Government claimed it did not have custody over the records. The 

Government further noted that Ricks was a participant in his own calls. The 

district court overruled the objection, concluding that there was no discovery 

violation. 

Despite the order granting Mandi immunity, Ricks did not call her as a 

witness, instead asking Agent Calagna whether the drugs belonged to her and 

her previous boyfriend, “Pig.” During closing argument, defense counsel raised 

the issue of Officer Long’s impaired vision and asserted that the Government’s 

failure to produce Ricks’s calls indicated that they contained no incriminating 

evidence. 

The jury found Ricks guilty on all counts. 

STANDARD OF REVIEW

The existence of substantial interference with the right to call a witness 

and to present a defense is a “factual question” that is reviewed for clear error. 

United States v. Thompson, 130 F.3d 676, 686–87 (5th Cir. 1997); see also

United States v. Skilling, 554 F.3d 529, 567 (5th Cir. 2009), aff’d in part and 

vacated on other grounds by Skilling v. United States, 561 U.S. 358 (2010). “A 

factual finding is clearly erroneous only if, based on the entirety of the 

evidence, the reviewing court is left with the definite and firm conviction that 

a mistake has been made.” United States v. Cordova-Soto, 804 F.3d 714, 718 

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(5th Cir. 2015). Any such violation is subject to harmless-error analysis, and 

this court “will not reverse unless the . . . conduct was sufficiently egregious in 

nature and degree so as to deprive [the defendant] of a fair trial.” Skilling, 554 

F.3d at 567 (second alteration in original) (internal quotation marks omitted).

A district court’s denial of a continuance is reviewed for an abuse of 

discretion. United States v. Porter, 907 F.3d 374, 383 (5th Cir. 2018); United 

States v. Stalnaker, 571 F.3d 428, 439 (5th Cir. 2009); United States v. Walters, 

351 F.3d 159, 170 (5th Cir. 2003). “[T]he movant must show that the denial 

resulted in specific and compelling or serious prejudice.” United States v. 

Barnett, 197 F.3d 138, 144 (5th Cir. 1999) (internal quotation marks omitted). 

This court will uphold the district court’s decision, even if it was harsh, if it 

was not arbitrary or unreasonable. Stalnaker, 571 F.3d at 439.

This court reviews “alleged discovery errors for abuse of discretion and 

will order a new trial only where a defendant demonstrates prejudice to his 

substantial rights.” United States v. Garcia, 567 F.3d 721, 734 (5th Cir. 2009); 

see also United States v. Doucette, 979 F.2d 1042, 1044–45 (5th Cir. 1992).

DISCUSSION

Ricks argues that, when it threatened Mandi, the Government interfered 

with his constitutional rights to call witnesses and to present a defense. He 

says that Mandi’s testimony would have been material and exculpatory and 

that he could not establish his innocence without it. He relies on Agent 

Calagna’s testimony establishing that Mandi was willing to testify that the 

drugs and gun were hers and urges that Agent Calagna’s threat, 

communicated in open court, to prosecute her for perjury if she testified for the 

defense, amounted to misconduct. Although Ricks admits the grant of 

immunity cured the initial alleged “threats” in conversations with 

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investigating officers, he argues that Agent Calagna’s threat during his trial 

undid the cure.2

A criminal defendant has a right under the Sixth Amendment to “present 

witnesses to establish his defense without fear of retaliation against the 

witness by the government.” United States v. Dupre, 117 F.3d 810, 823 (5th 

Cir. 1997). Moreover, “the Fifth Amendment protects the defendant from 

improper governmental interference with his defense.” United States v. 

Bieganowski, 313 F.3d 264, 291 (5th Cir. 2002). So “[s]ubstantial government 

interference with a defense witness’ free and unhampered choice to testify 

violates [the] due process rights of the defendant.” United States v. Anderson, 

755 F.3d 782, 792 (5th Cir. 2014) (internal quotation marks omitted). 

To prevail on a claim of substantial interference, “the defendant must 

show a causal connection between the governmental action and the witness’ 

decision not to testify.” Id. (internal quotation marks omitted). Showing a mere 

correlation between the Government’s action and the witness’s decision not to 

testify will not suffice. United States v. Girod, 646 F.3d 304, 312 (5th Cir. 2011).

Ricks acknowledges that the Government offered Mandi immunity. But, 

in his brief, he contends that Agent Calagna’s testimony to the effect that 

Mandi risked perjury if she testified that the gun and drugs were hers 

constituted an open-court threat that intimidated her. 

 

2 At oral argument, counsel suggested that the alleged open court threat was not 

actually reversible error but rather that the agent’s previous communications with Mandi 

amounted to threats and that the immunity waiver did not cure those threats. Counsel 

offered no evidence that Ricks made this argument to the district court and did not brief it in 

this court. Indeed, the argument in Ricks’s brief—rather than the new one presented at oral 

argument—is consistent with the objection counsel lodged at trial. Accordingly, this new 

argument has been forfeited. See Rosedale Missionary Baptist Church v. New Orleans City,

641 F.3d 86, 89 (5th Cir. 2011) (preserving an argument on appeal requires that the argument 

“be raised to such a degree that the district court has an opportunity to rule on it” (internal 

quotation marks omitted)); United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000)

(per curiam) (reciting the longstanding “rule in this circuit that any issues not briefed on 

appeal are waived”).

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Ricks has provided no evidence showing that Agent Calagna’s testimony 

was the reason that Mandi did not testify.3 See Anderson, 755 F.3d at 792; see 

also Thompson, 130 F.3d at 687 (“The defendant bears the burden of showing 

that testimony would have been different but for the government’s actions.”). 

When Agent Calagna testified, Mandi had not been called. And at the 

start of trial, the district court had ordered the witnesses sequestered. So 

Mandi was presumably not present to hear the alleged threat on which Ricks 

bases his interference claim. Ricks does not offer any theory as to how Mandi 

heard Agent Calagna’s testimony or how it affected her. Indeed, at oral 

argument, counsel admitted that Mandi could not have heard Calagna’s 

testimony. 

It was not clearly erroneous for the district court to conclude that an 

alleged threat, which was admittedly not heard by the person allegedly being 

threatened, did not amount to substantial interference.

But there is an independent problem. Our caselaw holds that a 

constitutional violation, under Webb v. Texas, 409 U.S. 95 (1972), requires (1) 

a threat of certain prosecution (2) directed specifically at the witness. See, e.g., 

United States v. Jackson, 453 F.3d 302, 306 n.8 (5th Cir. 2006); United States 

v. Gloria, 494 F.2d 477, 484–85 (5th Cir. 1974); United States v. Miller, 491 

F.2d 638, 648 n.17 (5th Cir. 1974). Even assuming Mandi was made privy to 

Calagna’s testimony—indeed, even assuming she was in the room—neither of 

those prerequisites would be met here. An investigator talked about (not to) a 

potential witness and about possible (not certain) prosecution.

 

3 The causation evidence on which Ricks relies—an affidavit executed by a private 

investigator for the defense—was submitted as part of the pretrial motion to quash before 

Mandi was granted immunity and is irrelevant to the argument briefed on appeal. In other 

words, Ricks needed to introduce some evidence showing that Agent Calagna’s testimony and 

interview statements had scared Mandi out of testifying despite the subsequent grant of 

immunity.

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Ricks next contends that the district court erred in denying his pretrial 

motion for a continuance following the Government’s late disclosure that 

Officer Long had been diagnosed with a condition affecting her vision. He 

complains that the Government disclosed that there were numerous other 

young black men being investigated for street-level drug dealing in the same 

area and that the denial of the continuance forced him to proceed to trial 

without time to investigate whether Officer Long’s medical condition impacted 

her ability to identify Ricks. Ricks argues that the denial limited his ability to 

cross-examine Officer Long.

Ricks’s general complaints about an inability to investigate Officer 

Long’s condition do not demonstrate that he suffered specific or compelling 

prejudice. Because his briefs do not point to any specific or compelling 

prejudice, he has forfeited any such argument. See United States v. Scroggins, 

599 F.3d 433, 446–47 (5th Cir. 2010); Fed. R. App. P. 28(a)(8)(A). Ricks also 

does not rebut the Government’s argument that Ricks’s charges were 

unrelated to Officer Long’s identification because he was not charged with the 

distributions observed during the surveillance. 

Even had he briefed the argument and responded to the Government, 

the evidence corroborating Officer Long’s testimony is utterly overwhelming. 

Individuals to whom Officer Long observed Ricks sell drugs were stopped 

shortly thereafter with drugs and admitted to meeting with Ricks immediately 

prior to their being stopped. Others described witnessing Ricks engaged in the 

sale of illegal drugs. And Ricks’s bedroom was filled with drugs, cash, a gun, 

and drug paraphernalia. Consequently, Ricks cannot show that the denial of 

his motion for a continuance was an abuse of discretion because it could not 

have amounted to anything more than harmless error—which cannot logically 

have caused prejudice. 

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Finally, Ricks urges that the Government violated Federal Rule of 

Criminal Procedure 16 by failing to provide him tapes of his prison phone calls,

and that the district court erred in concluding that the tapes were not 

discoverable. He claims that he was prejudiced as a result and that reversal is 

warranted because, without access to those calls, his ability to cross-examine 

Agent Calagna was improperly limited. 

Ricks cannot demonstrate that the district court abused its discretion

under Rule 16 because he fails even to assert that the records were “relevant”

to any issue at trial.4 Indeed, at oral argument, counsel conceded that Ricks 

never mentioned the calls to counsel—suggesting that there was nothing 

relevant on them since he, as a participant, must have been aware of their 

contents. 

Moreover, even if the failure to disclose the records amounted to error, 

Ricks cannot show that the error was sufficiently prejudicial to warrant 

reversal because, as the district court found, Ricks was already aware of the 

substance of his own prison phone calls and could have easily subpoenaed the 

records himself. See United States v. Ellender, 947 F.2d 748, 756–57 (5th Cir. 

1991) (rejecting the claim that the prosecutor violated the district court’s 

discovery order and Brady by failing to produce the defendant’s prison records 

because, with reasonable diligence, he could have obtained the material 

himself); see also Doucette, 979 F.2d at 1045 (applying the same “reasonable 

diligence” standard to claims under Rule 16).

Additionally, any claim of resulting prejudice fails given the 

“overwhelming” trial evidence demonstrating Ricks’s guilt. See United States 

v. Cochran, 697 F.2d 600, 606–07 (5th Cir. 1983) (finding no reversible error 

 

4 For that reason, we need not resolve the contested question of whether the records 

were in the Government’s possession, custody, or control. 

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resulting from the Government’s failure to produce during discovery copies of 

tape-recorded conversations between the defendant and others given the 

independent “overwhelming” evidence of the defendant’s guilt); see also Garcia, 

567 F.3d at 735 (determining that the sufficiency of the evidence to support the

defendant’s conviction defeated his ability to demonstrate the requisite 

prejudice resulting from an alleged Rule 16 violation).

The district court’s discovery ruling does not amount to reversible error.

CONCLUSION

For the foregoing reasons, we AFFIRM.5

 

5 Most of the dissent is devoted to second-guessing the jury by asking factual 

questions. Were the athletic socks in the dresser men’s socks or women’s socks? Did Ricks or 

his girlfriend wear men’s watches? In a text exchange between Ricks and his girlfriend, does 

“them people” refer to police officers? Was Tory Cargo, Ricks’s next-door neighbor, a credible 

witness? It is the jury’s job—not ours—to grapple with these factual questions. The dissent 

has less to say about the legal questions. And even there, the dissent does (or redoes) defense 

counsel’s job. The dissent admits Mandi could not have heard Agent Calagna’s “threat” in the 

courtroom. So, it points to Calagna’s earlier conversations with Mandi and argues, “Ricks 

does not admit that the grant of immunity cured any [earlier] threats.” Ricks’s own counsel 

recognized this immunity-is-no-cure claim was raised for the first time at our oral argument. 

Oral Argument at 24:04-24:30 (“I think that in the briefing I was looking at this a little 

differently than I should have.”). More fundamentally, the dissent never grapples with the 

fact that Ricks conditioned his motion to quash on “the government . . . cur[ing] its 

interference . . . by granting Mandi immunity.” The government did so. Once we admit that, 

the only explanation left is the dissent thinks that, to effectively cure any constitutional 

violation, a grant of immunity must immunize a witness from prosecution for perjury. Not 

so. See United States v. Apfelbaum, 445 U.S. 115, 126 (1980).

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JAMES E. GRAVES, JR., Circuit Judge, dissenting:

Because I would conclude that the government substantially interfered 

with Robert Ricks’ ability to call witnesses and present a defense, which 

constitutes clear error, and that the trial court abused its discretion in denying 

a continuance and in not requiring the government to permit access to Ricks’ 

telephone calls reviewed by authorities, I would vacate and remand. 

Therefore, I respectfully dissent.

Robert Ricks appeals his conviction for conspiracy to possess with the 

intent to distribute cocaine and heroin, possession with the intent to distribute 

cocaine and heroin, possession of a firearm in connection with a drugtrafficking offense and being a felon in possession of a firearm. He was 

sentenced to 300 months imprisonment.

The majority gives a summary of the facts. However, a detailed 

discussion of the facts is necessary to understand just how crucial any errors 

were to Ricks’ conviction. The majority attempts to dismiss any detailed 

discussion of the facts presented at trial as second-guessing the jury. Perhaps 

that explains how the majority repeatedly reached the unsupported and 

erroneous conclusion that the evidence against Ricks was “utterly 

overwhelming.” The government’s failure to introduce absolutely any evidence 

connecting Ricks to any gun or to the actual drugs found in the Malbroue 

residence establishes that the government’s interference with Ricks’ ability to 

call a defense witness, the denial of Ricks’ request for a reasonable amount of 

time to investigate the debilitating vision problems of the only eyewitness to 

any alleged hand-to-hand transaction during relevant time period, and the 

denial of Ricks’ access to jail calls reviewed by the government were anything 

but harmless.

In February 2015, the New Orleans Police Department (NOPD) received 

an anonymous tip that someone named “Robbie” was dealing drugs out of a 

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residence located in the 1200 block of Belleville Street in the Algiers 

neighborhood. This area was known as a “hot block” with a lot of foot and 

vehicle traffic and numerous individuals involved in criminal activity, 

including dealing drugs. Mandi Malbroue’s (Malbroue) parents, Carolyn and 

Troy Malbroue, owned a house at 1201 Belleville Street. During the time 

period in question, Robert Ricks, also known as “Ra-B,” was living with 

Malbroue, their minor child, and her parents at that residence. Also living 

around the same block was a probationer with prior drug convictions named 

Robie Turner, who was under investigation during the same time period and 

who had also absconded at the time of Ricks’ trial, according to his probation 

officer.

During the evening of February 15, 2015, Officer Chantell Long 

conducted surveillance from a car parked a block or so away. Among the 

numerous people and cars, Long observed a person she identified as Ricks 

engage in what she suspected were two or possibly three hand-to-hand drug 

transactions. One of the suspected transactions involved a female who walked 

up around 6 p.m. and briefly sat in a red, Dodge Challenger parked on the 

street with a male who Long believed was Ricks. A second suspected 

transaction involved a male passenger exiting a pickup truck and briefly 

meeting with a male Long identified as Ricks on the front porch at 1201 

Belleville. A third suspected transaction involved the male Long identified as 

Ricks briefly entering a maroon Jeep on the street. Long radioed nearby 

officers who stopped the individuals from the first and second transactions. 

Those nearby officers did not witness any of the suspected transactions. 

Additionally, the Jeep was not stopped and there was no confirmation that any 

of its occupants were actually involved in any drug transaction. 

Nearby officers conducted a pedestrian stop of the female, Nicole Feloss 

Hill, approximately three or four blocks away. During a search, officers 

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recovered one yellow, rectangular pill later identified as Xanax that Hill said 

she bought from someone else on the street - not from Ricks. Officers also 

stopped the pickup truck. Passenger Kendall Syvle was in possession of heroin 

and a syringe. Syvle, who will be discussed in more detail later, did not know 

the name of the person who sold him the heroin. 

Just a few days later, on February 19, 2015, officers served a search 

warrant in the pre-dawn hours on the Malbroue residence. Officers said that, 

as they approached the house to execute a warrant at 5:45 a.m., they saw a 

black male complete what they believed was a hand-to-hand transaction. 

However, Ricks was inside the house in his pajamas and not wearing shoes 

when officers arrived. A drug dog failed to alert to any drugs in the house. In 

Ricks’ and Malbroue’s shared bedroom, officers discovered heroin, crack 

cocaine, powder cocaine, marijuana, a digital scale, drug paraphernalia, cash 

and a loaded gun.1

The gun was found inside a sock in a plastic set of drawers in the shared 

bedroom. The exhibit photo shows a black, low cut, athletic sock of the variety 

that typically comes in both men’s and women’s styles. Authorities also found 

an empty, black, plastic box for a firearm. Authorities said there were “a couple 

of containers for men’s watches in the drawer.” Yet, the government offered 

no evidence to connect Ricks to any watch containers, the sock or the gun.2

Men’s clothing was not kept in the plastic set of drawers containing the 

gun or in the wooden dresser, where officers located the cocaine base. Officers 

 

1 Interestingly, authorities did not recover any Xanax, the type of drug Hill had one 

pill of in her possession that she maintained she bought from someone on the street and not 

from Ricks.

2 The majority erroneously assumes that the presence of watch boxes in a drawer 

means that either Malbroue or Ricks was wearing men’s watches. Yet the government 

offered no evidence of the existence of any actual watches and failed to connect any watches 

or any boxes to either Ricks or Malbroue.

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testified that the dresser drawers contained “junk” like “chargers and, like, 

broken electronics type stuff.” Additionally, officers described the contents of 

the dresser as “ambiguous,” indicating it was impossible to tell whether the 

items belonged to a male or female. Further, Ricks’ clothes were on a 

bookshelf, along with pieces of his mail and his ID. Those items are how 

authorities tied Ricks to powder cocaine found on the bookshelf.

In any event, Ricks and Malbroue were arrested on state gun and drug 

charges.3 Malbroue’s parents received citations for being in possession of 

marijuana. At the time, Malbroue also had pending state court gun and drug 

charges stemming from her arrest on June 1, 2014, while living on Iberville 

Street with a previous boyfriend, Isiah Theophile, also known as “Pig.” The 

majority states that Ricks identified himself as the owner of the cash found on 

the scene. But the majority fails to mention that Malbroue also identified 

herself as the owner of that same cash, which was later used to pay her state 

court fines. 

* Witness Interference

Beginning in 2013, federal authorities were involved in an investigation, 

known as “Hot Block,” of a group of individuals involved in violent crimes in 

the area of the 1200 block of Belleville Street in the Algiers neighborhood of 

New Orleans. Ricks was not part of this investigation, which involved the 

placement of a pole camera in the 1100 block of Belleville in December of 2014 

because of activity involving firearms. Not only did the investigation and 

camera have nothing to do with Ricks, but all potentially relevant video was 

destroyed. 

 

3 Malbroue ultimately pleaded guilty to the state drug charges. Meanwhile, Ricks 

received federal charges.

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Despite the fact that any alleged video was destroyed and not available 

for review, the district court allowed Special Agent Anthony Calagna with the 

Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to testify about it, 

over objection. Specifically, Calagna was allowed to say what he read about 

Ricks in a police report in which he was in no way involved and to say that he 

believed he had previously seen Ricks on video engaged in hand-to-hand drug 

transactions. Calagna admitted that he made no effort to identify the person 

he claims he saw on video and failed to save or download the video in any way. 

Further, Calagna admitted that he could not say he definitely recognized Ricks 

on the video, but said, again, that he believed it was him because other details 

matched up with a police report he read at some point. Once authorities 

decided to pursue federal charges against Ricks, Calagna became involved in 

his case.

Without the presence of her counsel, Calagna also called Malbroue in for 

at least two interviews after she and Ricks were arrested but before Ricks’ 

federal indictment. Calagna said officials did not believe it necessary to go 

through Malbroue’s counsel because “we weren’t going to address any of her 

participation or current court proceedings in regards to that case.” During the 

first interview at the ATF office, Malbroue was asked about Ricks and, 

according to Calagna, said: “She told us that the drugs found during the NOPD 

search warrant were not Robert’s and neither was the gun.” However, Calagna 

chose not to believe her. Likely because accepting her statement as true would 

address her participation and would mean Calagna improperly interrogated 

her without the presence of counsel. Following the first meeting, Malbroue 

accepted a state plea deal, pleading guilty to only possession of narcotics.

The second interview occurred outside the grand jury room at the federal 

courthouse while Malbroue was in state custody. Again, Calagna asked 

Malbroue about the drugs and gun found during the search. Again, Malbroue 

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said the gun and drugs were hers and denied they belonged to Ricks. Again, 

Calagna chose not to believe her. At that point, Calagna conveyed the 

following threat to Malbroue: “We explained to her that we knew what she was 

doing. We knew that she was taking – attempting to take the charges for 

Robert. We explained to her that if she was put into the grand jury and sworn 

under oath, that she’d be committing perjury in a federal grand jury.” Calagna 

claimed he believed it would be perjury because Malbroue accepted a plea deal 

that did not include the gun charge and because he believed Ricks was also in 

control of those narcotics and the firearm. After conveying the threat of perjury 

if Malbroue did not implicate Ricks, Calagna said: “She broke down. She was 

crying. She told us that she just couldn’t do it. She couldn’t testify against 

Robert, that he’s the father of her child, but that she would cooperate on any 

other individuals in the 1200 block of Belleville and would testify against 

them.” Importantly, Malbroue never told Calagna that the drugs or gun 

belonged to Ricks. Instead, Malbroue consistently maintained the drugs and 

gun belonged to her. Specifically, Malbroue said she told the agents she “knew 

they had found the gun in her drawer in a sock.”4 Further, Malbroue “said that 

she told them that she had the gun because, during the period she was selling 

drugs out of her house on Iberville, there was an incident where someone 

locked a car door, so she couldn’t get out, put a gun to her head, and stole her 

purse. She said she acquired the gun so she would be able to protect herself if 

something like that ever happened again.” To prevent Malbroue from telling 

the grand jury the gun and drugs belonged to her, authorities then decided not 

to call her to testify. Instead, Calagna was allowed to tell his version of the 

conversation with Malbroue to the grand jury and his belief that she was lying 

and would perjure herself.

 

4 Malbroue was interviewed by a private investigator who provided an affidavit. 

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Prior to trial, Ricks unsuccessfully attempted to quash the indictment on 

the basis that federal agents had met with Malbroue on those two occasions 

and that on both occasions she admitted owning the gun and drugs. Malbroue 

repeatedly told the agents that the gun and drugs were hers, that the gun was 

in her drawer, and that she had bought the gun to protect herself after being 

robbed. Malbroue also repeatedly denied to agents that the drugs and gun 

belonged to Ricks.

In response to Ricks’ motion to quash, the U.S. Attorney moved for an 

order compelling Malbroue’s testimony and granting her immunity. It was 

granted on the first day of trial. However, the order entered granted immunity, 

“except in a prosecution for perjury, giving a false statement, or failing to 

comply with this Order.” As stated above, when Calagna met with Malbroue 

without the presence of her counsel, he told her that she would be facing 

charges if she testified the gun and drugs were hers, as she had consistently 

maintained, because she had accepted a plea deal in state court that did not 

include the gun charge. Calagna repeated this same threat at trial. Malbroue 

said Calagna also told her that authorities would press charges against her 

and she was “going to go down for this too” if she testified on Ricks’ behalf.

Ricks again moved to quash, asserting that Calagna’s testimony 

basically rendered Malbroue’s immunity ineffective.5 The district court denied 

Ricks’ motion. Malbroue was present at the courthouse and prepared to testify 

on Ricks’ behalf at trial. However, after Calagna’s testimony, Malbroue left 

the courthouse and did not testify. 

At Rick’s trial, Hill testified that she had become friends with Ricks when 

he worked at a barber shop on Washington Avenue and she went to see him to 

try to borrow some money to buy a Mardi Gras outfit. Hill denied that she 

 

5 The majority ignores the fact that Ricks re-asserted his motion to quash.

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purchased or received any drugs from Ricks. She also said there were more 

than 10 people hanging out on Belleville when she went to see Ricks because 

it is a hot block.

Syvle testified that he bought different drugs from different individuals 

on the corner of Belleville, but he didn’t know the names of any of the dealers 

on the corner. He said one person was called “R.”6 Syvle also testified that he 

had been high and awake for two or three days at the time of the transaction 

and had “dealt with maybe 100 guys” that weekend. Syvle also repeatedly 

testified that officers told him they had him on video buying drugs from an 

individual they said was Ricks or “Ra-B.” Interestingly, during the portion of 

redirect when Ra-B was referenced, the prosecutor is who first mentioned the 

name “Ra-B” and the record does not reflect that the name was spelled for the 

record at that time, yet the transcript shows the unique spelling of “Ra-B” and 

not “Robbie” or “Robie.” More importantly, though, no such video ever existed. 

The only video was from the later stop of the vehicle and arrest of Syvle. 

After reference to the video, Ricks’ counsel said: “We would ask for any 

such film. None has been produced to us in discovery, Judge, and we don’t 

believe there is any such film.” The court then called counsel to the bench and 

chastised Ricks’ lawyer for even asking for the video that Syvle testified about 

repeatedly, saying: “I don’t know whether there is or isn’t, but you shouldn’t do 

that in front of the jury. You can raise that with me separately.” Ricks’ counsel 

replied: “But, Judge, I think it is highly misleading for the witness --” At that 

point, the court inquired into the existence of any film and the government 

admitted it had no such film. The court then told the government to call their 

next witness.

 

6 The government failed to introduce any evidence indicating Ricks was ever known 

as “R.”

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Another witness, James Chapman, who suffered a head injury in 1996 

that affects his memory, also testified. Chapman said that he had previously

bought marijuana and crack on “the hot block” from numerous individuals 

including a female named “Dew,” a male named “T.O.,” who was arrested in 

Chapman’s car, Ra-B, and others. Chapman said he met Ra-B through Ra-B’s 

drug-dealer neighbor, Danita, and that Chapman hung out on Danita’s front 

porch and purchased his drugs at Danita’s. Chapman also testified that Ra-B 

never sold drugs from the Malbroue residence at 1201 Belleville Street and he 

never saw Ra-B with a gun and never heard him reference a “gun.” Chapman 

said he heard Ra-B say “the thing” before and thought maybe that meant a 

gun. Chapman also said that he acted as an intermediary for a few sales to 

other drug dealers for Ra-B. Chapman said that he had an ongoing, paidinformant relationship with “Tony,” Special Agent Anthony Calagna with the 

Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), that started 

before he ever met Ricks and continued after he met Ricks.7 However, 

Chapman said authorities never asked him to make a controlled buy from 

Ricks. Further, authorities never even asked Chapman anything about Ricks 

until after Ricks was arrested. But Chapman had stopped associating with 

Ricks and hanging around that area by that time. During cross-examination, 

Chapman was unable to explain why he spelled his name “C-h-a-p-i-m-a-n” 

before the grand jury or why there was no record of any phone contact between 

himself and Ricks during the time period he says he was dealing with Ricks.

Calagna testified extensively regarding information found on cellular 

telephones belonging to Ricks and Malbroue. Much of his testimony involved 

him interpreting what he believed various messages meant. For example, 

Calagna testified that Malbroue sent Ricks a text messages stating: “Be careful 

 

7 Chapman said the ATF paid him more than $4,000.

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because them people riding around.” Calagna said, based on his training and 

experience, “them people” refers to the police. However, the very next text 

Calagna testified about was a message Mandi sent Ricks saying, “The police 

just came up the one way.” It makes no sense why Malbroue would use “them 

people” as code for the police in one text but refer to the police as “the police” 

in another text. Also, it would seem “them people” Malbroue was warning 

Ricks to be careful of could also be the numerous violent offenders federal 

officials were investigating on the block. Additionally, Calagna testified to 

numerous texts on Malbroue’s phone indicating that she was selling narcotics 

independent of Ricks. There were also numerous messages between Malbroue 

and her ex-boyfriend, Isiah Theophile, also known as “Pig.” Malbroue and 

Theophile previously had been arrested together for drug and gun violations.

Notably, Calagna did not write any investigative reports or witness 

reports on Ricks’ case. Instead, Calagna relied solely on the previous reports 

done by NOPD and whatever testimony was provided to the grand jury. 

Although, as we know, Malbroue was ultimately not called to testify in front of 

the grand jury. Instead, Calagna just remembered what she said. Calagna 

apparently did make some outlines of notes on some witnesses, but those were 

not turned over to the defense. Calagna also testified that he never considered 

Robbie to be anyone other than Ra-B, despite the fact that neither Ricks nor 

1201 Belleview were part of his prior investigations. However, 1209 Belleville, 

which was Danita’s house two doors down, was referred to by Calagna in his 

grand jury presentation as “Crack Dealing Headquarters and Cook House.” 

During his testimony, Calagna also identified various hot block drug dealers 

of similar size and description to Ra-B that were included in his grand jury 

presentation. Another individual, Sidney Frazier, was identified by Calagna 

as one of the leaders of the gang Swu Woo. Calagna said, “Swu Woo it’s derived 

from the Blood Gang. Hot Block is derived from Swu Woo.” When asked 

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whether he was aware that Robie Turner was also a member of Swu Woo, 

Calagna said he was not aware. 

The majority mentions a neighbor who testified that he saw Ricks 

dealing drugs on numerous occasions and that Ricks and Malbroue worked 

together. That neighbor was Tory Cargo. The ATF paid Cargo $600 for his 

testimony before the grand jury. Calagna testified that Cargo was having 

financial difficulties supporting his seven children. Cargo testified at Ricks’ 

trial that, while on parole for a prior conviction, he was motivated to contact 

the ATF and offer testimony against Ricks “because of the things that I’ve been 

through on Belleville, and the way that my kids can’t, you know, really go 

outside, you know, due to the things that go on around Belleville.” Yet one of 

Cargo’s numerous prior convictions involved him pleading guilty to having his 

daughter in the backseat while engaged in a drug deal in Jefferson Parish. 

Cargo was also arrested for possession with intent to distribute crack 

approximately one month after his grand jury testimony. Cargo was in custody 

and in a work release program for that offense when he testified at Ricks’ trial. 

Because Cargo missed work, he also planned to receive additional payment for 

his testimony at trial. 

Cargo testified that he got out of jail in January of 2015 and was staying 

at 1236 Belleville. Cargo said he would leave early in the morning to go job 

hunting and would not return to Belleville until “about 10 in the evening – 10 

that morning.” But whenever he returned from his long hours of job hunting, 

Cargo would visit his girlfriend, Jamie, who lived at 1213 Belleville. Cargo 

said Jamie lived two doors down from the Malbroue house with her sister, 

Cassie Picquet, who was both a drug user and a drug dealer. Cargo testified 

that Picquet sold crack and used heroin, which she bought from Ricks. Cargo 

said that when Ricks was not home, Picquet bought drugs from Mandi. Cargo 

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said that he knew about this because he overheard Picquet’s phone 

conversations.

Cargo told Calagna during interviews that he had never seen Ricks with 

a gun. Cargo also testified before the grand jury that he had never seen Ricks 

with a gun. At trial, Cargo changed his story and said that he saw a bulge in 

Ricks’ shirt. Specifically, Cargo said: “Well, I seen a bulge in his shirt. You 

know how – you know how somebody, you know, has something up under their 

shirt and you know it’s a gun? You know the difference between a phone, a 

knife, and a gun.”

Cargo’s girlfriend lived next door to 1209 Belleville, which was Danita’s 

house. Cargo referred to Danita’s house as a “trap house,” a “place where all 

the drug dealers hang at” to “sell their crack and stuff like that.” Cargo said 

that at different times when he was hanging out at Danita’s “trap house,” he 

saw Ra-B there too. When asked what Ra-B was doing at the trap house, Cargo 

said, “[w]ell, basically, you know, probably hanging out sometime or, you know, 

talking to the fellas who were on the – the other fellas who were over there, 

you know.” Cargo also testified to what he believed was Ra-B asking Danita 

to cook some crack, “[s]o he was like, ‘Teedie [Danita’s nickname], I need you 

for to, you know, cook this up for me.” Cargo did not explain how he knew 

“this” meant crack. Cargo also said he heard Ra-B talk about money, “[h]e was 

like, ‘All, you know, all blue faces, you know, you all get your money up.” Cargo 

said, “blue faces” meant 100-dollar bills and Ra-B was “really talking to the 

hustlers that’s on the block” who were “having conversations and stuff like 

that.” Cargo also testified that he saw a photo of Ra-B with cash in his hand. 

Cargo also said that all of the guys on the block were users and dealers except 

for him. Despite Cargo’s various drug arrests, having previously been 

sentenced to drug court, constant association with drug dealers and users, and 

his penchant for trap houses, he claimed he never touched the stuff. 

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As the majority states, Ricks has a Sixth Amendment right to “present 

witnesses to establish his defense without fear of retaliation against the 

witness by the government.” United States v. Dupre, 117 F.3d 810, 823 (5th 

Cir. 1997). “Substantial governmental interference with a defense witness' 

choice to testify may violate the due process rights of the defendant.” Id. 

(Internal marks omitted). “[S]o long as the investigation of witnesses is not 

prompted by the possibility of the witnesses testifying, and so long as the 

government does not harass or threaten them, the defendant's rights are not 

violated.” United States v. Whittington, 783 F2d 1210, 1219 (5th Cir. 1986); see 

also United States v. Fricke, 684 F.2d 1126, 1130 (5th Cir. 1982). Additionally, 

“the Fifth Amendment protects the defendant from improper governmental 

interference with his defense.” United States v. Bieganowski, 313 F.3d 264, 

291 (5th Cir. 2002).

Ricks asserts that the government interfered with his constitutional 

rights to call witnesses and present a defense when it threatened Malbroue 

because her testimony would have been material and exculpatory. The 

majority seemingly disregards this argument on the basis that there is no 

indication Malbroue was present in the courtroom during Calagna’s 

testimony.8 Regardless of whether Malbroue heard Calagna’s testimony, there 

is no dispute that his testimony corroborated Malbroue’s statements about 

their meetings without the presence of her counsel and her fear that, if she 

testified to what she consistently maintained was truthful, authorities would 

pursue additional charges against her. Further, as Malbroue was represented 

by counsel, one would presume that her counsel had some inkling of what was 

going on at that point and that Malbroue had received a copy of the “immunity” 

 

8The majority erroneously interprets this as some concession that there is no way 

Malbroue could possibly have known about Calagna’s reassertion of the threat at trial. It is 

no such thing.

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order setting out exceptions for the very charges authorities had consistently 

threatened. 

The majority asserts that Ricks “admits the grant of immunity cured the 

initial alleged ‘threats’ in conversations with officers” but then says he argued 

“that Agent Calagna’s threat during trial undid the cure.” However, Ricks does 

not admit that the grant of immunity cured any threats. Ricks states that the 

government offered the immunity motion as a remedy for the error. He does 

not say the offered remedy cured any error. In fact, the grant of immunity 

containing exceptions for the very threats asserted by Calagna was not a cure. 

Moreover, I disagree with the majority’s attempt to couch this as a new issue 

not previously raised. Ricks has consistently asserted the entire time that 

Calagna made the same threat three different times – twice while interviewing 

Malbroue without the presence of counsel and once at trial. Ricks has also 

asserted the entire time that these threats were not cured by anything and 

constituted interference with his ability to call a witness and present a defense. 

Ricks objected and moved to quash two different times. There is nothing 

inconsistent between the arguments at trial, the arguments in his brief and 

his oral arguments on this matter, which the district court has already had an 

opportunity to rule on. Rosedale Missionary Baptist Church v. New Orleans 

City, 641 F.3d 86, 89 (5th Cir. 2011).

The majority also states that Ricks has provided no evidence showing 

that Agent Calagna’s testimony was the reason that Mandi did not testify.” 

Thus, the majority concludes that Ricks is unable to show a causal connection 

between the governmental action and Malbroue’s decision not to testify. See 

United States v. Anderson, 755 F.3d 782, 792 (5th Cir. 2014). However, Ricks 

has provided evidence that Malbroue said she wanted to be able to testify on 

Ricks’ behalf but was afraid to testify because of Calagna’s threats. The 

majority dismisses this affidavit because it was submitted as part of the pre-

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trial motion to quash and claims it is somehow irrelevant to the argument 

briefed on appeal. But the affidavit is relevant to the argument briefed on 

appeal. Despite the government and the majority’s repeated attempts to 

somehow sever and cure the first two threats, it is impossible to do so. Notably, 

Malbroue also said that “Robert had turned his life around and was not selling 

drugs in February 2015. Instead, he was making money as a barber, putting 

his drawing talents to use there as he cut designs into hair.” Additionally, 

Malbroue said the drugs in the house actually belonged to her previous 

boyfriend, Pig, for whom she was holding them and to whom she had planned 

to return them.

The government does not dispute that Calagna told Malbroue she would 

be prosecuted for perjury if she testified on Ricks’ behalf. Instead, the 

government argues that it “immunized Malbroue so that the defense could call 

her as a witness.” But Malbroue was not immunized from anything. Not only 

did the immunity order contain exceptions for the very charges Calagna 

repeatedly threatened, but Calagna repeated the threat during trial. Despite 

both the majority’s and the district court’s characterizations, this is not about 

Malbroue seeking a license to perjure herself. This is about the government 

threatening her repeatedly by telling her that she would be prosecuted for 

additional charges if she testified on Ricks’ behalf because it believed she was 

lying, not that it had proof that she actually was lying, and because the fact 

that she had benefited from a plea agreement that did not include the gun 

charge would make her guilty of perjury. From the evidence presented at trial, 

it is clear that the government did not have overwhelming evidence of Ricks’ 

guilt. Moreover, it would be highly improper for the government to use a plea 

deal as a threat for future prosecution. No defendant would insist that the 

government, or in this case the state, allow him or her to plead to additional 

charges. The fact that the state and federal government deals or beliefs did 

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not align is not the fault of Malbroue or Ricks and should not interfere with his 

constitutional right to call witnesses without interference and present a 

defense.

At bottom, Ricks and Malbroue were arrested for drugs and a gun, which 

was found in Malbroue’s dresser in a house owned by her parents. Authorities 

offered Malbroue a deal wherein she only had to plead guilty to state drug 

charges. Then federal authorities went after Ricks for both the drugs and the 

gun, despite Malbroue repeatedly telling them the gun and drugs were hers. 

At trial, they claimed to give Malbroue immunity to testify on Ricks’ behalf but 

threatened her that if she testified to what she had maintained the entire time 

– that the gun and drugs were hers, they would prosecute her federally. They 

reduced her to tears at one point because she believed she would lose her child. 

Officials also met with Malbroue without the presence of her lawyer and told 

her they did not want to know anything about her involvement, they just 

wanted her to implicate Ricks.

Authorities did not make any buys from Ricks. Authorities had two 

people they claim they saw purchase drugs from Ricks. However, one of those 

people, Hill, who knew Ricks from his cutting hair, consistently maintained 

she had not bought any drugs from Ricks, was not in possession of any of the 

types of narcotics discovered in the Malbroue residence and said she had 

stopped to see Ricks on the day in question to borrow money. It is unclear how 

Hill’s testimony was even relevant to this case since Ricks was not charged 

with distribution and her testimony could not in any way connect Ricks to 

possession of any of the drugs or the gun found in the Malbroue residence. The 

other person had been high for two or three days, did not know the name of the 

person he bought drugs from, and had dealt with about 100 different people 

that weekend. Authorities also paid various other witnesses to testify 

regarding Ricks’ prior narcotics activity. However, none of those witnesses 

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testified as to Ricks’ possession of any drugs inside the Malbroue residence. 

Further, at least one key government witness explicitly contradicted the 

government’s case by stating that Ricks never sold drugs from the Malbroue 

residence – testimony that was consistent with Malbroue’s statement. 

Authorities did not attempt to obtain fingerprints or DNA evidence from 

the aluminum or plastic the drugs were encased in, the gun or anything else. 

They did not have any DNA or prints to connect Ricks to the drugs or the gun. 

They also had no witnesses to connect Ricks to the gun. However, what they 

did have was Malbroue telling them the drugs and gun were hers and why she 

obtained a gun. Malbroue had previously been arrested with crack cocaine, 

heroin and an AK-47 with Pig in June of 2014. It is unclear whether Malbroue 

pleaded guilty to the gun charge in that case, but she pleaded guilty to the 

narcotics. Officers took no notes regarding the surveillance. Officers also had

no evidence that the drugs did not belong to Malbroue and Pig. Malbroue and 

Pig were still in contact, as evidenced by phone records and Malbroue’s 

statements regarding her plans to return the drugs to Pig. Malbroue wanted 

to testify on Ricks’ behalf but feared she would be prosecuted based on 

Calagna’s repeated threats. 

For all of these reasons, I conclude that the government substantially 

interfered with Ricks’ right to call Malbroue as a witness and present a 

defense. Further, this constitutes clear error.

* Continuance

Just before trial, the government disclosed that Officer Long, who had 

conducted the surveillance, had been diagnosed with a brain tumor affecting 

her vision just two months after the surveillance and had brain surgery shortly 

thereafter. Further, the government disclosed that there had been numerous 

other young black men investigated for similar drug dealing in the same area 

at the same time. Ricks asked for and was denied a continuance for additional 

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time to investigate Long’s medical condition and the effect it had on any 

identification.

The majority concludes that Ricks is unable to demonstrate prejudice, in 

part, because Ricks’ “charges were unrelated to Officer Long’s identification 

because he was not charged with the distributions observed during the 

surveillance” conducted by Long. I disagree. Other than drugs being found in 

a room shared by Malbroue and Ricks in the Malbroue residence, the 

government’s strongest evidence connecting Ricks to any drugs during the time 

period in question was Long’s testimony that she believed she saw Ricks 

engaged in hand-to-hand drug transactions in the street. Of the individuals 

stopped following Long’s observations, one admitted meeting with Ricks and 

attempting to borrow money, but denied she had purchased any drugs and, in 

fact, was not in possession of any drugs of the type found in the Malbroue 

residence. The other individual, who had been high and awake for two or three 

days and had dealt with approximately 100 dealers that weekend, did not know 

the name of the person he had met with and said it was “a little black dude.” 

Upon additional questioning, this witness said he did not recall a name, but 

eventually said one of the guys who worked the corner was named “R.” The 

witness also testified that he only knew this person by “R” and did not know 

any other name until authorities told him they had him on video purchasing 

drugs from Ra-B. Again, no such video ever existed. Also, the government has 

presented no evidence that Ricks ever went by “R.” 

Beyond that evidence, the only other testimony was that of paid 

informants and drug dealers/users who claimed they had purchased drugs 

from Ricks at some point in the past unrelated to this investigation. These 

same witnesses were unable to explain discrepancies in their testimony. 

Additionally, as stated previously, authorities did not attempt to obtain 

fingerprints or DNA from any packets of drugs, the gun, or any other items. 

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Thus, Long’s testimony was crucial and formed the basis for the entire case. 

Further, the positions of the government and the majority on this would beg 

the question of why all of this evidence was allowed to be introduced when 

Ricks was not even charged with distribution and it was supposedly so 

unnecessary to his conviction for possession that it would not matter if it was 

wrong.

As the majority states, this court reviews a district court’s denial of a 

continuance for an abuse of discretion. United States v. Porter, 907 F.3d 428, 

439 (5th Cir. 2009). In determining whether a district court abused its 

discretion, this court looks to the totality of the circumstances. United States 

v. Stalnaker, 571 F.3d 428, 439 (5th Cir. 2009). The totality of the 

circumstances includes: 

(a) the amount of time available;

(b) the defendant's role in shortening the time needed;

(c) the likelihood of prejudice from denial;

(d) the availability of discovery from the prosecution;

(e) the complexity of the case;

(f) the adequacy of the defense actually provided at trial;

and (g) the experience of the attorney with the accused.

 

Stalnaker, 571 F.3d at 439.

Here, the government did not disclose this information until just a few 

days before trial. Ricks had no role in shortening the time needed. The 

likelihood of prejudice from an erroneous identification was significant. While 

Ricks was able to cross-examine Long on her medical issue, he did not have 

time to do additional discovery or independent investigation regarding the 

likelihood of whether she was having vision problems at that time, whether 

her vision problems had affected other NOPD cases, or whether the fact that 

the surveillance occurred at night could have exacerbated any problems, 

among other things. Long’s brain tumor was so serious that she was still 

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suffering from vision problems and on disability at the time of trial. When all

of this is combined with the facts that Malbroue consistently stated that the 

drugs and guns were hers, that multiple other people, including many who 

looked similar to Ricks and some who also had the same or similar names, were 

selling drugs in the same area at the same time, and the lack of “utterly 

overwhelming” evidence in this case, I conclude that the district court abused 

its discretion in refusing to grant a continuance.

* Jail calls

Over objection, Calagna also testified about some of the hundreds of jail 

telephone calls he listened to as part of his investigation. Some of these phone 

calls involved Armand Matthews, also known as “Butter.” Specifically, 

Calagna testified about a phone call from Butter to an individual named 

Sterling Adams, also known as “Apple.” A recording of the phone call was 

played before the jury and the government interpreted it as Butter telling 

Apple, “Go around Belleville tell that boy Ra-B I said give you the 500.” 

However, the caller does not spell Ra-B and there’s no indication he’s not 

saying Robbie or Robie. Additionally, the government referenced other calls 

where they believed the name could only be Ra-B.

On cross-examination, Ricks’ counsel asked Calagna whether he had also 

reviewed any of Ricks’ jail telephone calls, and Calagna said that he had. 

Ricks’ counsel then stated that he had “never been provided any jail calls.” 

Counsel further argued that “this is basic fundamental Rule 16 discovery. If 

there are statements from Mr. Ricks, I'm entitled to receive those. If they're 

inculpatory, I certainly need to know them; if they're exculpatory, I certainly 

need to know them, but I've not been provided anything of that sort.” Ricks’ 

counsel also argued, “[a]nd I don't know, I haven't heard them, but I suspect 

what he probably said was he didn't have anything to do with these drugs, and 

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if that's the case, that's certainly Brady evidence that the government would 

have had to turn over.”

The government responded that, although authorities were able to log in 

and listen to the jail calls and had possession of any that were favorable to the 

government, they did not have possession of any other jail calls. The district 

court then overruled Ricks’ objection and concluded there was no discovery 

violation. The court also said that the defense could have subpoenaed Ricks’ 

calls and made the statement that “[t]he government isn’t using them, and 

doesn’t have them.”

The majority states that Ricks cannot demonstrate an abuse of discretion 

on the part of the district court under Rule 16 because he fails to assert that 

the records were “relevant” to any issue at trial. The majority then states that, 

for that reason, it need not resolve the issue of whether the records were in the 

Government’s possession, custody or control. However, I disagree. 

While there is certainly an argument that the defense could not possibly 

have known whether the calls were relevant without having reviewed the calls, 

there is also an argument that any calls that were relevant for purposes of 

government review were also relevant to the defense. Moreover, the defense 

could not show the error was sufficiently prejudicial to warrant reversal 

without having reviewed the calls. The majority’s attempt to substitute Ricks’ 

knowledge of any of his own calls for the professional judgment of his counsel 

in determining relevancy or prejudice is improper. Additionally, Ricks did not 

know Calagna had also reviewed Ricks’ jail calls until he was asked at trial.

Regarding recorded statements, Rule 16 of the Federal Rules of Criminal 

Procedure provides in relevant part that: 

Upon a defendant's request, the government must disclose 

to the defendant, and make available for inspection, copying, or 

photographing, all of the following:

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(i) any relevant written or recorded statement by the 

defendant if:

• the statement is within the government's possession, 

custody, or control; and

• the attorney for the government knows--or through due 

diligence could know--that the statement exists.

Fed. R. Crim. P. Rule 16(a)(1)(B)(i).

Here, the government knew the statements existed and had been 

reviewed. Any argument that the statements were not within the possession, 

custody, or control is disingenuous. While the telephone system may be 

maintained by the parish, the government admitted at trial that it had the 

capability to log in, review any and all calls it deemed relevant, obtain 

recordings of those calls, and introduce them as evidence at trial. Clearly this 

puts the statements within the control of the government. Rule 16 requires 

possession, custody, or control. (Emphasis added). Further, despite the 

district court’s statement to the contrary, there is no requirement in this 

subsection that the government actually be using all of the recordings at trial.

The majority also concludes that “any claim of resulting prejudice fails 

given the ‘overwhelming’ trial evidence demonstrating Ricks’ guilt.” However, 

as stated previously, there is far from any “overwhelming” evidence of guilt 

here. Thus, I would conclude that the district court abused its discretion in not 

requiring the government to permit access to the recordings of Ricks’ calls. 

CONCLUSION

Because I would conclude that the government substantially interfered 

with Ricks’ ability to call witnesses and present a defense, which constitutes 

clear error, and that the trial court abused its discretion in denying a 

continuance and in not requiring the government to permit access to Ricks’ 

telephone calls Calagna had reviewed, I would vacate and remand. Therefore, 

I respectfully dissent.

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