[Senate Report 111-347]
[From the U.S. Government Publishing Office]
111th SENATE Report
2d Session 111-347
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IMPEACHMENT TRIAL COMMITTEE
ON THE ARTICLES AGAINST
JUDGE G. THOMAS PORTEOUS, JR.
November 16, 2010.--Ordered to be printed
Filed, under authority of the order of the Senate of November 15, 2010
111th Congress
2d Session SENATE Report
111-347
_______________________________________________________________________
R E P O R T
of the
IMPEACHMENT TRIAL COMMITTEE
ON THE ARTICLES AGAINST
JUDGE G. THOMAS PORTEOUS, JR.
November 16, 2010.--Ordered to be printed
Filed, under authority of the order of the Senate of November 15, 2010
IMPEACHMENT TRIAL COMMITTEE
On the Articles Against Judge G. Thomas Porteous, Jr.
CLAIRE McCASKILL, Missouri, Chairman
ORRIN G. HATCH, Utah, Vice Chairman
AMY KLOBUCHAR, Minnesota JIM DeMINT, South Carolina
SHELDON WHITEHOUSE, Rhode Island JOHN BARRASSO, Wyoming
TOM UDALL, New Mexico ROGER F. WICKER, Mississippi
JEANNE SHAHEEN, New Hampshire MIKE JOHANNS, Nebraska
EDWARD E. KAUFMAN, Delaware JAMES E. RISCH, Idaho
COMMITTEE STAFF
Derron R. Parks, Staff Director and Chief Counsel
Thomas L. Jipping, Deputy Staff Director and Deputy Chief Counsel
Justin S. Kim, Counsel
Rebecca S. Seidel, Counsel
Erin P. Johnson, Deputy Counsel and Chief Clerk
Lake Dishman, Professional Staff Member
Congressional Research Service Staff
Susan Navarro Smelcer, Analyst on the Federal Judiciary
Senate Legal Counsel Staff
Morgan J. Frankel, Senate Legal Counsel
Patricia Mack Bryan, Deputy Senate Legal Counsel
Grant R. Vinik, Assistant Senate Legal Counsel
Thomas E. Caballero, Assistant Senate Legal Counsel
ACKNOWLEDGMENTS
The Committee gratefully acknowledges the high standard of
professionalism and long hours of dedicated service of its
staff. The Committee also expresses its appreciation to Lynden
C. Armstrong, Chief Clerk of the Committee on Rules and
Administration, and to the following staff of Committee
members:
Staff of Committee Members
Senator McCASKILL, Chairman, Derron R. Parks
Senator HATCH, Vice Chairman, Thomas L. Jipping
Senator KLOBUCHAR, Paige Herwig
Senator WHITEHOUSE, Stephen C.N. Lilley and Justin G. Florence
Senator UDALL, Matthew T. Nelson
Senator SHAHEEN, Thomas J. Maloney
Senator KAUFMAN, Nhan Nguyen
Senator DeMINT, Erica Suares
Senator BARRASSO, Bryn Stewart
Senator WICKER, Emily Ferris
Senator JOHANNS, Sarah Novascone
Senator RISCH, Jason Bohrer
Interns
Christian Dibblee
Timothy Holman
Hannah Lockhart
Annie Moulton
Michael Naclerio
Patrick Sadler
C O N T E N T S
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Page
Introduction..................................................... 1
PART ONE
Certification to the Senate of the Committee's Proceedings....... 3
PART TWO
Summary of the Evidence.......................................... 4
Procedural History............................................... 5
I. Article I.........................................................6
A. Text of the Article....................................... 6
B. Introduction to the Evidence.............................. 7
C. Statement of Facts........................................ 7
1. Conduct While a State Court Judge and Curatorships.... 7
a. The House's perspective........................... 10
b. Judge Porteous's perspective...................... 10
2. Conduct While a Federal Court Judge and Lifemark
Hospitals v. Liljeberg Enterprises..................... 10
a. The House's perspective........................... 14
b. Judge Porteous's perspective...................... 14
D. Expert Testimony.......................................... 15
1. Professor Charles G. Geyh............................. 15
2. Professor Dane Ciolino................................ 15
II. Article II.......................................................16
A. Text of the Article....................................... 16
B. Introduction to the Evidence.............................. 17
C. Statement of Facts........................................ 17
1. Conduct While a State Court Judge and Relationship
with the Marcottes..................................... 17
a. Bail bonds process and alleged favors............. 17
i. The House's perspective......................... 21
ii. Judge Porteous's perspective................... 22
b. Set aside and expungement of criminal convictions. 24
i. The House's perspective......................... 26
ii. Judge Porteous's perspective................... 27
c. Louis Marcotte's interview with the FBI........... 28
i. The House's perspective......................... 29
ii. Judge Porteous's perspective................... 29
2. Conduct While a Federal Court Judge and Relationships
with the Marcottes..................................... 29
a. The House's perspective........................... 31
b. Judge Porteous's perspective...................... 31
D. Expert Testimony.......................................... 32
1. Professor Charles G. Geyh............................. 32
2. Professor Dane Ciolino................................ 32
III.Article III......................................................33
A. Text of the Article....................................... 33
B. Introduction to the Evidence.............................. 33
C. Statement of Facts........................................ 33
1. Background............................................ 33
2. Chapter 13 Bankruptcy Overview........................ 34
3. Judge Porteous's Chapter 13 Bankruptcy Filings........ 35
4. May 9 Creditors Meeting and June 28 Confirmation of
the Chapter 13 Plan.................................... 38
5. Gambling-Related Activity and Extensions of Credit.... 39
6. FBI Investigation into Judge Porteous's Bankruptcy
Filings................................................ 41
D. Contested Issues.......................................... 42
1. Using a False Name and Post Office Box on the Original
Bankruptcy Petition.................................... 42
2. Concealing Assets and Income.......................... 43
3. Incurring Debt Through the Use of Casino Markers...... 46
4. Preferential Payments to Creditors.................... 47
5. Concealing Gambling Losses............................ 49
6. Incurring More Debt in Violation of Judge Greendyke's
Order.................................................. 50
7. The Materiality of Judge Porteous's Conduct........... 50
E. Expert Testimony.......................................... 51
1. Advice of Counsel..................................... 51
2. Judge Greendyke's Admonishment Against Incurring More
Debt................................................... 52
IV. Article IV.......................................................52
A. Text of the Article....................................... 52
B. Introduction to the Evidence.............................. 53
C. Statement of Facts........................................ 53
1. FBI Interviews........................................ 54
a. Initial interviews................................ 54
b. Follow-up interviews.............................. 56
2. Nomination and Senate Confirmation.................... 57
D. Contested Issues.......................................... 58
1. The House's Perspective............................... 58
2. Judge Porteous's Perspective.......................... 58
E. Expert Testimony.......................................... 59
1. Professor Charles G. Geyh............................. 59
2. Professor G. Calvin Mackenzie......................... 59
Committee Rollcall Vote.......................................... 61
ADDENDA
A. Rule XI of the Rules of Procedure and Practice in the Senate
When Sitting on Impeachment Trials ............................ 61
B. Senate Resolution 458......................................... 62
C. Description of Committee Proceedings.......................... 63
D. Glossary of Names Appearing in the Committee Report........... 65
ON THE IMPEACHMENT OF JUDGE G. THOMAS PORTEOUS, JR.
_______
November 16, 2010.--Ordered to be printed
Filed, under authority of the order of the Senate of November 15, 2010
_______
Mrs. McCaskill, from the Impeachment Trial Committee on the Articles
Against Judge G. Thomas Porteous, Jr., submitted the following
R E P O R T
INTRODUCTION
The United States Constitution provides: ``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.''\1\ The Constitution gives the ``sole Power of
Impeachment''\2\ to the House of Representatives and the ``sole
Power to try all Impeachments''\3\ to the Senate.
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\1\U.S. Const., art. II, Sec. 1A4. While the Constitution does not
define ``civil Officers of the United States,'' the House and Senate
have consistently found federal judges to be in this category. Not
including Judge Porteous, the House has impeached eighteen federal
officials, fourteen of whom have been judges. Of these fourteen, the
Senate has convicted seven and acquitted four. The remaining three
judges resigned before their trials could be completed.
\2\Id., art. I, 2.
\3\Id., art. I, 3.
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On March 17, 2010, pursuant to Rule XI of the Rules of
Procedure and Practice in the Senate When Sitting on
Impeachment Trials,\4\ the Senate created this Impeachment
Trial Committee with its adoption of Senate Resolution 458.
This resolution authorized the Committee ``to receive and to
report evidence'' with respect to the articles of impeachment
presented by the House against U.S. District Court Judge G.
Thomas Porteous, Jr., of the Eastern District of Louisiana.\5\
Pursuant to its mandate, the Committee received evidence on the
following articles:
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\4\The text of Rule XI appears as Addendum A to this report.
\5\The text of Senate Resolution 458 appears as Addendum B to this
report.
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Article I alleges that, while a federal judge, Judge
Porteous improperly denied a motion to recuse himself from
presiding over a case, despite having a ``corrupt financial
relationship'' with a law firm representing one of the parties
to the case. He also allegedly misrepresented this relationship
during the recusal hearing. Additionally, while the case was
under advisement, Judge Porteous solicited and accepted things
of value, including thousands of dollars in cash, from
attorneys appearing before him.
Article II alleges ``a longstanding pattern of corrupt
conduct'' with former bail bondsmen. While on the state court
bench, Judge Porteous favorably set and structured bonds and
performed other official acts for bail bondsmen while
soliciting and accepting things of value from them. As a
federal judge, he continued to receive things of value in
exchange for ``us[ing] the power and prestige of his office''
to help these bondsmen form corrupt relationships with state
court judges. Finally, Judge Porteous is alleged to have known
that one bondsman made false statements to the Federal Bureau
of Investigation (FBI) in an effort to assist Judge Porteous's
appointment to the federal bench.
Article III alleges that, in relation to his personal
bankruptcy in 2001, Judge Porteous knowingly and intentionally
made material false statements and representations in his
bankruptcy filings under penalty of perjury and violated the
bankruptcy court's order. These alleged actions include using a
false name in his bankruptcy filing, concealing assets and
debts, concealing preferential payments to creditors,
concealing gambling losses, and incurring new debt while the
case was pending.
Finally, Article IV alleges that Judge Porteous knowingly
and intentionally made material false statements to the Senate
and to the FBI ``in order to obtain the office of United States
District Court Judge.'' These statements include denying that
there was anything in his background that could be used to
influence, coerce, blackmail, or compromise him; embarrass him
or the President if publicly known; or affect his nomination.
Having received the evidence, the Committee has two
responsibilities that it fulfills in this report. First, Rule
XI directs the Committee to ``report to the Senate in writing a
certified copy of the transcript of the proceedings and
testimony had and given before such committee.'' The Committee
satisfies this responsibility in Part I of this report. Second,
Senate Resolution 458 directs the Committee to ``report to the
Senate a statement of facts that are uncontested and a summary,
with appropriate references to the record, of evidence that the
parties have introduced on contested issues of fact.'' This is
a ``neutral summary''\6\ because the Committee has no authority
to make recommendations regarding matters as to the weight of
the evidence or whether the Senate should vote to convict or
acquit on the articles of impeachment.\7\ The Committee
achieves this in Part II of this report.
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\6\Senate Committee on Rules and Administration, Procedure for the
Impeachment Trial of U.S. District Judge Alcee L. Hastings in the
United States Senate, 101st Cong., 1st Sess., S. Rpt. 101-1, at 74
(February 2, 1989).
\7\See also Report of the Impeachment Trial Committee on the
Articles Against Judge Walter L. Nixon, Jr., 101st Cong., 1st Sess., S.
Rpt. 101-164, at 3 (October 16, 1989) (stating that the Committee ``has
no authority to recommend to the Senate whether the Senate should vote
to convict or to acquit Judge Nixon on the Articles of Impeachment'');
Report of the Impeachment Trial Committee on the Articles Against Judge
Alcee L. Hastings, 101st Cong., 1st Sess., S. Rpt. 101-156, at 3
(October 2, 1989) (Hastings Committee Report) (stating that the
Committee ``has no authority to recommend whether the Senate should
vote to convict or to acquit on the articles of impeachment''); id. at
10 (``The Committee's report is meant to be a neutral statement that
neither explicitly nor implicitly urges a particular result in the
case, or on any aspect of it.''); id. at 11 (``In accordance with its
limited mandate, the Committee as a whole takes no view of the
evidence.''); On the Impeachment of Harry E. Claiborne, 99th Cong., 2nd
Sess., S. Rpt. 99-511, at 1 (October 1, 1986) (``Senate Impeachment
Rule XI does not authorize the Committee to make recommendations to the
Senate.'').
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PART ONE--CERTIFICATION TO THE SENATE OF THE COMMITTEE'S PROCEEDINGS
The record of the Committee's proceedings is printed in the
Report of the Senate Impeachment Trial Committee on the
Articles Against Judge G. Thomas Porteous, Jr.: Hearings Before
the Senate Impeachment Trial Committee, S. Hrg. 111-691, 111th
Cong., 2nd Sess. (2010). The Committee met on November 16,
2010, and, as Rule XI directs, certified the hearing report to
be a copy of the transcript of proceedings had and testimony
given before it.\8\ The roll call vote appears after the
summary of the evidence.
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\8\To further assist Senators, Addendum C to this report provides a
brief narrative description of the Committee's proceedings.
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Part 1 of this hearing report contains the Committee's pre-
trial proceedings, from its creation on March 17, 2010, to the
start of its evidentiary hearings on September 13, 2010. Part 2
consists of the transcript of the Committee's evidentiary
hearings.\9\ Part 3 contains the exhibits admitted during and
after the Committee's evidentiary hearings, demonstrative
exhibits used during the hearing, the parties' proposed
findings of fact, and other post-trial filings.
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\9\Twenty-six witnesses testified before the Committee's
evidentiary hearings. Each was subject to examination and cross-
examination by the parties and to questions from Committee members.
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Prior to the consideration of the articles of impeachment
before the full Senate, each Senator will receive copies of
post-trial briefs from the parties. These post-trial briefs
present the House's and Judge Porteous's positions on matters
of fact and law. Each side will also have the opportunity to
present a summation to the full Senate. The Senate will then
meet in closed session to deliberate on the merits of the
articles. Each article is to be voted on separately, and the
question presented will be whether the respondent, Judge
Porteous, is ``guilty'' or ``not guilty'' of the article at
issue.
The Committee highlights one unresolved matter from its
pre-trial proceedings. Prior to the evidentiary hearings, both
parties filed a number of pre-trial motions. These included
motions to dismiss the articles of impeachment, individually
and collectively. The Committee declined to act on Judge
Porteous's motions to dismiss separately each article because
it is not authorized to dismiss articles of impeachment. If
Judge Porteous seeks to renew these motions before the full
Senate, in which case the Senate may decide whether to hear
argument on these issues and vote separately on the motions or
whether to consider the issues raised by the motions in the
context of its disposition of the articles of impeachment.
Upon the Senate's receipt of this report, Rule XI provides
that ``the evidence so received and the testimony so taken
shall be considered to all intents and purposes, subject to the
right of the Senate to determine competency, relevancy, and
materiality, as having been received and taken before the
Senate.'' Thus, the Senate remains the master of the record
before it and may review the admissibility of the evidence
received by the Committee and summon witnesses to testify
before the full Senate.
There remains a question of the appropriate standard of
proof for impeachment trials. The Committee notes that during
his 1986 impeachment trial, U.S. District Judge Harry E.
Claiborne moved ``to designate `Beyond a Reasonable Doubt' as
the standard of proof in [his] impeachment trial.''\10\ The
Senate's Presiding Officer ruled that ``the question of
standard of evidence is for each Senator to decide individually
when voting on Articles of Impeachment.''\11\ Upon a Senator's
request, Judge Claiborne's motion was submitted to the full
Senate, which voted 17-75 against it, thereby declining to
establish an obligatory standard.\12\ Each Senator may,
therefore, use the standard of proof that he or she feels is
appropriate.
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\10\132 Cong. Rec. 29152 (Oct. 7, 1986).
\11\Id.
\12\Id. at 29153; see also Hastings Committee Report, supra note 7,
at 5.
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PART TWO--SUMMARY OF THE EVIDENCE
Introduction
The Committee's basic responsibility to receive and report
evidence is the same as in the three previous impeachments for
which an impeachment trial committee was used. Carrying out
that responsibility, however, is unique to each impeachment
trial. As a result, this report's format and content are guided
by the responsibilities assigned to the Committee by Rule XI
and Senate Resolution 458, the nature of these particular
articles of impeachment, and the evidence in this case. The
Committee has not sought to present every fact to which the
parties might attribute some meaning and has undoubtedly
included facts that one party might consider irrelevant. The
evidentiary summary does, however, attempt to describe those
matters that the Committee understands to be the chief factual
issues and to explain the significance of factual
controversies.
This report is not a substitute for the parties' own
marshaling of facts and arguments in support of their positions
and is but one resource that the Senate may use in this case.
The principal discussion of each party's view of the evidence
and the overall case will be found not in this report but in
the parties' written briefs and oral summation before the
Senate. The Committee's description of the parties' arguments
or perspectives in this report is intended only to aid in
providing a coherent and meaningful summary.
The summary of the evidence begins with a procedural
history, which provides an overview of various proceedings in
this matter that occurred prior to the Senate trial. This
procedural history is followed by a discussion of the evidence
pertaining to each article of impeachment against Judge
Porteous. As the articles allege relatively distinct patterns
or sets of conduct, this report will present this discussion in
four separate sections, one for each article. In each section,
the text of each article, as drafted by the House, will be
presented, followed by a presentation of the uncontested and
contested facts relevant to that article.\13\
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\13\The full text of the articles were also published within S.
Doc. 111-13.
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The Committee has sought to indicate when there is
conflicting evidence on any factual matter, while also
presenting a report that is coherent and readable. To that end,
the discussions of Articles I and II, which rely heavily on
witness testimony, integrate uncontested and contested facts to
a greater degree than the discussions of Articles III and IV,
which rely more heavily on documentary evidence.\14\ Citation
to exhibits and testimony will reference the record as
contained in the hearing report.\15\
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\14\Addendum D contains a glossary of persons who are frequently
mentioned in this report.
\15\Citations in this report, whether witness testimony (identified
by last name), stipulations, or exhibits, will include the part and
page number of the hearing report. The parties' stipulations are found
in Part 1C; a transcript of the evidentiary hearings are found in Parts
2A and 2B; and exhibits appear in Parts 3B through 3E of the certified
record. Generally, exhibits initially identified by the House are
numbered between 1-530; those identified by Judge Porteous are numbered
between 1001-2007.
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Procedural History
Judge Porteous served as a judge on Louisiana's 24th
Judicial District Court (JDC) from 1984 until 1994, when
President William J. Clinton appointed him to the U.S. District
Court for the Eastern District of Louisiana. In 1999, an FBI
probe into corruption involving judges on the 24th JDC, known
as ``Operation Wrinkled Robe,'' uncovered allegations of
corruption involving Judge Porteous. While declining to seek
criminal charges against Judge Porteous, the Department of
Justice submitted a complaint of judicial misconduct to the
U.S. Court of Appeals for the Fifth Circuit in May 2007.\16\
The conduct alleged in the complaint corresponds to the
allegations in the first and third articles of impeachment now
before the Senate.
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\16\In the letter submitting a judicial misconduct complaint to the
Fifth Circuit, the Department of Justice cited factors contributing to
its decision not to prosecute Judge Porteous. These include ``the
relevant statute of limitations'' regarding some incidents; whether the
government could prove its case beyond a reasonable doubt to a
unanimous jury; whether the government could prove elements such as
materiality and an intent to deceive; the need for ``consistency in
charging decisions concerning bankruptcy and criminal contempt
matters''; and ``the availability of alternative remedies for Judge
Porteous's history of misconduct while on the bench, including
impeachment and judicial sanctions.'' Ex. 4, 3B at 378-388. In 2006,
while a target of a federal grand jury investigation, Judge Porteous
signed three agreements extending for a total of five months the five-
year statute of limitations regarding certain federal crimes. These
agreements did not affect the statute of limitations that had expired
prior to April 2006. Exs. 1003-1005, 3E at 5538-5546.
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The Judicial Council of the U.S. Court of Appeals for the
Fifth Circuit appointed a Special Investigatory Committee to
investigate the allegations concluded that Judge Porteous
committed judicial misconduct that ``might constitute one or
more grounds for impeachment.''\17\ On December 20, 2007, the
Fifth Circuit Judicial Council voted 15-4 to conclude that
Judge Porteous ``has engaged in conduct which might constitute
one or more grounds for impeachment under Article II of the
Constitution.''\18\ Ex. 5, 3B at 464. The Council also voted to
certify the Justice Department's complaint to the Judicial
Conference of the United States.\19\
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\17\The Fifth Circuit Judicial Council is comprised of the Chief
Judge, nine Fifth Circuit judges, and nine U.S. District Court judges.
\18\Four dissenting judges agreed that Judge Porteous must be
publicly reprimanded ``for legal and ethical misconduct during his
tenure as a federal judge'' but disagreed ``that the evidence
demonstrates a possible ground for his impeachment and removal from
office.'' Ex. 6(b), 3B at 472.
\19\Pursuant to 28 U.S.C. Sec. 354(b)(2)(A), a judicial council
``shall promptly certify . . . to the Judicial Conference of the United
States'' a determination ``that a judge appointed to hold office during
good behavior may have engaged in conduct which might constitute one or
more grounds for impeachment under article II of the Constitution.''
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On June 17, 2008, the Judicial Conference voted unanimously
to certify to the Speaker of the U.S. House of Representatives
that ``consideration of impeachment of United States District
Judge G. Thomas Porteous (E.D. La.) may be warranted.'' Ex.
7(b), 3B at 536. On September 10, 2008, the Fifth Circuit
Judicial Council issued a public reprimand of Judge Porteous
for ``conduct that is prejudicial to the effective and
expeditious administration of the business of the courts'' and
that ``brought disrepute to the federal judiciary.'' The
Council ordered that no new cases be assigned to Judge Porteous
and suspended his authority to employ staff for two years or
``until Congress takes final action on the impeachment
proceedings, whichever occurs earlier.''\20\ Ex. 8, 3B at 594-
601.
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\20\On September 8, 2010, the Fifth Circuit Judicial Council
extended this effective suspension until December 31, 2010.
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On September 17, 2008, the House of Representatives adopted
House Resolution 1448, authorizing the Judiciary Committee to
inquire whether the House should impeach Judge Porteous. A
Judicial Impeachment Task Force comprised of 12 House members
held four hearings in November and December 2009. On January
21, 2010, the Task Force voted unanimously to recommend four
articles of impeachment, followed by a unanimous vote of the
House Judiciary Committee on January 27, 2010. The House, in
turn, voted unanimously to approve each of the four articles of
impeachment on March 11, 2010.\21\
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\21\156 Cong. Rec. H1335-37 (daily ed. March 11, 2010).
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I. ARTICLE I
A. Text of the Article
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
1980s while he was a State court judge in the 24th JDC 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.
B. Introduction to the Evidence
Article I addresses Judge Porteous's handling of the
Lifemark v. Liljeberg case in light of his prior relationships
with Jacob Amato and Robert Creely. The statement of facts
below outlines those relationships while Judge Porteous served
as a state court judge, as well as his handling of Lifemark v.
Liljeberg as a federal judge. The evidence relevant to Article
I is drawn primarily from Judge Porteous's testimony before the
Fifth Circuit Special Investigatory Committee,\22\ the parties'
stipulated facts, and the testimony of Amato and Creely before
this Committee. Due to the nature of the evidence, creating a
cohesive narrative required integrating some contested facts
with uncontested facts. Because Article I relies heavily on
testimonial evidence, the credibility of witnesses and, as a
result, the meaning of their testimony are accordingly
important.
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\22\Over Judge Porteous's objection, the Committee admitted into
evidence his testimony before the Special Investigatory Committee of
the U.S. Court of Appeals for the Fifth Circuit, which was compelled
pursuant to an immunity order. The Committee declined the House's
request to issue a subpoena to Judge Porteous to testify in the
Committee's evidentiary hearings, and Judge Porteous chose not to
testify before the Committee. See Addendum C. Therefore, the only sworn
testimony of Judge Porteous relating to any facts underlying the
articles of impeachment was before the Fifth Circuit Special
Investigatory Committee.
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C. Statement of Facts
1. Conduct While a State Court Judge and Curatorships
Judge Porteous graduated from Louisiana State University in
1968 and the Louisiana State University Law School in 1971.
Stip. 5, 1C at 2526. Starting in 1973 and continuing until
1984, he worked with Jacob Amato as an Assistant District
Attorney in Jefferson Parish, Louisiana; for part of this time,
Judge Porteous and Robert Creely also worked in the law firm of
Edwards, Porteous & Amato. Stips. 8-10, 1C at 2526.\23\
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\23\Amato and Creely practiced law together from approximately 1973
until 2005 as partners in the law firm of Creely & Amato. Stip. 54, 1C
at 2530.
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After his election to the state court bench in 1984, Judge
Porteous remained close friends with his colleagues and would
often have lunch with Amato and with Creely. Stips. 60, 69-70,
1C at 2531. Between 1984 and 1994, many state court judges in
the 24th JDC went to lunch with attorneys practicing in the
area. Stip. 62, 1C at 2531. Both Creely and Amato generally
paid for lunches they had with state judges, including Judge
Porteous. Stips. 62-65, 71-76, 1C at 2531-2532. In testimony
before the Fifth Circuit Special Investigatory Committee, Judge
Porteous admitted that it was not uncommon for Creely and Amato
to treat him to lunch and, on occasion, dinner, noting that,
when he went out with Creely and Amato, he never paid. Ex. 10,
3B at 794.
In addition to dining together, judges and attorneys in
Gretna, Louisiana, also socialized in other ways, such as
hunting and fishing together. Stip. 81, 1C at 2532. From their
time together in private practice through Judge Porteous's
appointment as a federal judge, Creely and Judge Porteous
regularly hunted and fished together, and they were often
joined by Amato. When Robert Creely hosted judges and other
attorneys on these trips, he usually paid for all of the
expenses. Amato, 2A at 125-126; Creely, 2A at 257-259; see
Stips. 79-80, 1C at 2532; Ex. 10, 3B at 800-801. To Judge
Porteous's children, who often went along on the fishing trips,
Amato and Creely were ``Uncle Jake'' and ``Uncle Bob.'' Timothy
Porteous, 2B at 1155, 1157, 1164; Stip. 55, 1C at 2530.
While serving on the state court bench, Judge Porteous
occasionally asked Creely for money when they were having lunch
or hunting and fishing. Creely indicated that Judge Porteous
would ask for this money to cover ``daily living expenses'' or
tuition for his children. Creely, 2A at 282. At first, Creely
gave Judge Porteous whatever cash he had on hand, but over
time, these amounts increased from under $100 to possibly as
much as $1,000. Eventually, the amounts increased to the point
that Creely confronted Judge Porteous, telling him, ``I'm tired
of giving you money, I'm tired of you asking for money. This
isn't what friends are supposed to do to one another.'' Id. at
260-262. Creely refused to give Judge Porteous any more money
and told him that he needed to get his finances under control.
Judge Porteous acknowledged in testimony before the Fifth
Circuit Special Investigatory Committee that he received money
from Creely over a period of years but does not recall the
total amount. There, Judge Porteous testified that he
considered these payments to be gifts or loans but acknowledged
that he never repaid Creely for these amounts. Ex. 10, 3B at
785-786.
Shortly after Creely refused to continue giving him money,
Judge Porteous started to assign ``curatorships'' to the law
firm of Amato & Creely.\24\ During this time period, judges on
the 24th JDC frequently assigned attorneys as ``curators'' to
represent the interests of absent parties in litigation. These
curatorship cases were largely administrative, lasted
approximately three to six months, and generated fees of
approximately $150 to $200 per case. Amato, 2A at 132, 244-245;
Creely, 2A at 262-263; Stips. 90, 98, 1C at 2533.
---------------------------------------------------------------------------
\24\In addition to receiving curatorship appointments from Judge
Porteous, Creely received curatorship appointments from several other
judges in the 24th JDC. Stip. 99, 1C at 2533.
---------------------------------------------------------------------------
From 1988 through 1994, available court records show that
Judge Porteous assigned 192 curatorships to Creely. Stips. 91-
97, 1C at 2533. According to Creely, he neither asked for nor
wanted the curatorship appointments; he testified that ``[a]
curator was like a pain in the neck to me.'' Creely, 2A at 263.
However, Creely accepted the appointments, completed the work,
and collected the fees for his law partnership. Amato, 2A at
131-132. These curatorships are estimated to have generated
approximately $40,000 in fees for the law firm of Creely &
Amato. Amato, 2A at 134-135.
During the time he was assigning curatorships to Creely,
Judge Porteous again started asking Creely for money, and
Creely obliged. Creely, 2A at 263-264. According to Creely and
Amato, when Judge Porteous asked for money during this period,
they would each take an equal draw from the law firm's general
operating account and arrange for cash to be put in an envelope
for Judge Porteous. Amato, 2A at 129-130; Creely, 2A at 275-
278; see also Ex. 10, 3B at 796. It was Creely's understanding
that Judge Porteous ``didn't want checks. He wanted cash.''
Creely, 2A at 367. According to Amato, cash was given to
``avoid any kind of paper trail.'' Amato, 2A at 131.
Creely eventually began avoiding Judge Porteous because, as
Creely testified, ``most of the time that I was around him, he
would begin to ask me for cash.'' Creely, 2A at 266. After
Creely started avoiding him, Judge Porteous called Creely's
secretary asking for a portion of the fees resulting from the
curatorship appointments. Judge Porteous testified before the
Fifth Circuit that he does not recall this conversation. Id. at
265; see also Ex. 10, 3B at 800. Amato confirmed that Judge
Porteous had ``called [Creely] and hounded him and, you know,
[asked him] where's, you know, my curator money.'' Amato, 2A at
129. Creely testified that he was troubled by this telephone
call because he had not drawn a connection between the money he
gave to Judge Porteous and the fees generated by the
curatorships Judge Porteous assigned to him. Nonetheless,
Creely testified that it was clear to him that Judge Porteous
made such a connection even though there was no explicit
arrangement to that effect. Creely, 2A at 265-266, 299.
After this telephone call, Creely testified that he told
Amato, ``[T]his is getting out of control with a friend. I
don't know how to handle this anymore. I don't know how to end
this. I don't know how to control this, but it's got to stop.''
Id. at 266-267. Creely and Amato eventually agreed that they
would continue to give Judge Porteous money because, given the
firm's revenue from the curatorship fees, the payments
``weren't costing [them] anything.'' Id. at 267, 274. While he
never discussed the matter with Judge Porteous, Amato testified
that he understood that Judge Porteous was assigning
curatorships and, in turn, Creely was giving money to the judge
from their respective draws. Amato, 2A at 127-129; Creely, 2A
at 275. Amato characterized this activity as ``probably
unethical more than being . . . some type of criminal offense''
but judged it to be a form of a kickback.\25\ Amato, 2A at 129.
---------------------------------------------------------------------------
\25\Amato testified that he told Creely that he ``thought it was
going to turn out bad.'' Amato, 2A at 128.
---------------------------------------------------------------------------
The House proffered evidence that, ultimately, Judge
Porteous received approximately half of the fees generated by
the assignment of curatorships to Amato & Creely. The FBI
calculated that, in total, Amato & Creely generated $40,000 in
fees from the 192 curatorships that Judge Porteous assigned to
Creely. Creely and Amato testified that, over a period of six
years, they gave Judge Porteous $20,000, or approximately one-
half, of the total fees collected from the curatorships.\26\
Amato, 2A at 132, 134-135, 218-220; Creely, 2A at 268, 274-275.
In October 1994, Judge Porteous was confirmed as a U.S.
District Court Judge for the Eastern District of Louisiana and,
in this position, was no longer able to assign state court
curatorships. Creely and Amato both testified that after Judge
Porteous's appointment to the federal bench, their monetary
gifts to him all but ceased. Amato, 2A at 133; Creely, 2A at
278.
---------------------------------------------------------------------------
\26\Creely further testified that this $10,000 estimate of the
amount he himself provided also generally included the money given
before and after the curatorships. Creely, 2A at 301-302.
---------------------------------------------------------------------------
a. The House's perspective
The House argues that Judge Porteous assigned curatorships
to Robert Creely as part of a kickback scheme to collect a
portion of the generated fees. The House asserts that, given
the amount of money involved and curatorships assigned, an
implicit understanding existed regarding the curatorship
appointments and the money given to Judge Porteous by Amato and
Creely. The House insists that admissions from Judge Porteous
during his Fifth Circuit testimony, taken as a whole, paint a
picture of a classic kickback relationship in which Judge
Porteous received money from Creely and Amato after assigning
them curatorships. Ex. 10, 3B at 785. Additionally, the House
argues that Creely's testimony that Judge Porteous called
Creely's secretary to inquire about the money from the
curatorships demonstrates that Judge Porteous understood a
linkage between the curatorships and the money Creely and Amato
gave to him. The House asserts that this view is also supported
by evidence that Judge Porteous stopped receiving money from
them after he became a federal judge when he could no longer
assign curatorships to Creely and, therefore, could no longer
ask for money generated from the assignment of those
curatorships. Amato, 2A at 133; Creely, 2A at 278.
b. Judge Porteous's perspective
Judge Porteous contends that the House misrepresents his
long-standing and close friendships with Amato and Creely, and
that the evidence shows merely that his good friends provided
occasional assistance. Before the Fifth Circuit Special
Investigatory Committee, Judge Porteous testified that the
money he received from Creely and Amato was a loan or a gift
from friends, not a kickback from the curatorship assignments.
Ex. 10, 3B at 785-786. Creely also denied that there was any
explicit agreement linking the curatorships to the money given
to Judge Porteous. As a result, Creely did not consider his
cash gifts to Judge Porteous to constitute a kickback or a quid
pro quo. Moreover, any money that he gave to Judge Porteous
could not have been intended as a bribe to influence him
because Creely did not have any pending cases before the Judge.
Creely, 2A at 302-303, 347-348.
2. Conduct While a Federal Court Judge and Lifemark
Hospitals v. Liljeberg Enterprises
On January 16, 1996, Lifemark Hospitals of La., Inc. v.
Liljeberg Enterprises, Inc. was transferred to Judge Porteous.
This was a complicated, non-jury civil case, filed in 1993,
involving Louisiana law.\27\ Stip. 104, 1C at 2533. Lifemark
financed construction of the Kenner Regional Medical Center by
the Liljeberg family. Once built, Lifemark operated the medical
center, and the Liljebergs operated the affiliated pharmacy.
The Liljebergs lost the hospital through foreclosure with
another lender. Believing that Lifemark bore at least some of
the responsibility, the Liljebergs sought damages from
Lifemark. Lifemark then sued the Liljebergs to end its contract
with them, and the Liljebergs sued Lifemark to recover under
the pharmacy contract. Mole, 2A at 383-384.
---------------------------------------------------------------------------
\27\Before being assigned to Judge Porteous, at least seven
district court judges and three magistrates presided over various
portions of the case. Stip. 105, 1C at 2534.
---------------------------------------------------------------------------
Approximately six weeks before the scheduled start of the
bench trial, the Liljebergs filed a motion to enter the
appearances of Jacob Amato and Leonard Levenson as counsel,
which Judge Porteous granted four days later.\28\ Levenson,
like Amato, was a close friend of Judge Porteous's. Stips. 108,
110, 137, 1C at 2534. Judge Porteous testified that, unlike
Levenson, who often handled complex civil litigation in state
courts, Amato would not ordinarily have been involved in this
kind of case because his background and practice were almost
exclusively in personal injury.\29\ Ex. 10, 3B at 815.
Liljeberg Enterprises hired both on a contingent fee basis.
Stip. 109, 1C at 2534. The Liljebergs valued the case at
between $15 million and $30 million, and if successful, Amato
stood to earn between $500,000 and $1 million. Amato, 2A at
136.
---------------------------------------------------------------------------
\28\Prior to entering the case, Amato took two to three months to
evaluate the merits of the case in order to decide whether to enter the
case. Stip. 113, 1C at 2534. Amato was brought in before Levenson.
Amato, 2A at 196.
\29\In Lifemark's motion to recuse, Lifemark attorney Joseph Mole
describes Leonard Levenson's specialty as personal injury law. This
differs from Judge Porteous's description of Levenson's specialty in
the Fifth Circuit proceedings, in which he indicated that Levenson
dealt with complex civil litigation in state courts. Ex. 10, 3B at 816-
817; Ex. 52, 3B at 1139.
---------------------------------------------------------------------------
Joseph Mole, Lifemark's lead attorney, was concerned by the
timing of Amato's and Levenson's appearances in the case. After
asking around, Mole testified that he ``developed some serious
concerns that Mr. Amato's and Mr. Levenson's presence in the
case would be a problem that would keep the case from having a
fair result.'' Mole, 2A at 386-387. On October 1, 1996,
Lifemark filed a motion to recuse Judge Porteous, which was
accompanied by the affidavit of Mole, noting Judge Porteous's
close relationships with Amato and Levenson. The Liljebergs
opposed the motion. Id. at 388-389; Stip. 114, 1C at 2534.
On October 16, 1996, Judge Porteous held a hearing on the
motion to recuse, at which Amato and Levenson were present.
Stips. 118-119, 1C at 2534-2535. According to the transcript of
the hearing, Mole argued that an appearance of impropriety was
created by the appearance of Amato and Levenson because, as
Mole asserted at the recusal hearing, ``All they have in common
is that they are your close friends. The public perception is
that they dine with you, travel with you, that they have
contributed to your campaigns.'' Judge Porteous, however,
refuted Mole's assertion that he received campaign
contributions from Amato and Levenson, stating, ``Well,
luckily, I didn't have any campaigns, so I am interested to
find out how you know that.'' Ex. 56, 3B at 1181. Judge
Porteous noted that the one instance in which Amato and
Levenson did contribute to his re-election campaign was through
a ``Justice for All'' event organized by Jefferson Parish, from
which each judge received a portion of the contributions. Judge
Porteous stated:
You haven't offended me. But don't misstate, don't
come up with a document that clearly shows well in
excess of $6700 with some innuendo that means that they
gave 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.
Id. at 1183. Judge Porteous also stated during this hearing,
``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. Have I been going to lunch with all
members of the bar? The answer is yes.'' Id. at 1180. Judge
Porteous assured Mole 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
opportunity if they wanted to ask me to get off.'' Id. at 1291.
Judge Porteous, however, did not disclose that, as a state
court judge, he had never or rarely paid for lunch when he
dined hundreds of times with Amato and Creely; nor did Judge
Porteous disclose that they had given him approximately $20,000
after he began to assign curatorships to Creely. Mole, 2A at
389-390; Stip. 114, 1C at 2534; Ex. 10, 3B at 818; Ex. 56, 3B
at 1174-1198. Judge Porteous also failed to disclose that,
several months before his appointment to the federal bench, in
the summer of 1994, he told Rhonda Danos, his secretary, to
solicit money from Amato, Creely, and Levenson to sponsor his
son's externship in Washington, D.C. Danos, 2A at 784-785;
Timothy Porteous, 2B at 1165-1166.
Judge Porteous denied the motion to recuse but granted a
stay of the trial pending Lifemark's appeal of his order to the
U.S. Court of Appeals for the Fifth Circuit. On October 28,
1996, the Fifth Circuit denied Lifemark's request for a writ of
mandamus on the motion to recuse. Stips. 12, 114, 120, 1C at
2526, 2534, 2535; Ex. 59, 3B at 1329-1330. Mole testified that,
following Lifemark's attempt ``to level the playing field''
before the Fifth Circuit failed, he was told to ``hire someone
who [knew] the judge.'' In consultation with Tom Wilkinson, the
Jefferson Parish Attorney who had appeared before Judge
Porteous on the state court bench, Mole hired Donald Gardner,
another close friend of Judge Porteous.\30\ Stip. 100, 1C at
2533. Mole hoped that Gardner's addition to Lifemark's legal
team would induce Judge Porteous to recuse himself since close
friends represented both parties. Mole, 2A at 393-395, 425.
---------------------------------------------------------------------------
\30\Judge Porteous testified before the Fifth Circuit Special
Investigatory Committee that Gardner was another friend who
occasionally gave him cash. Ex. 10, 3B at 795.
---------------------------------------------------------------------------
As part of the retainer agreement, Lifemark agreed to pay
Gardner $100,000 upon enrollment as counsel. The retainer
agreement also provided that if Judge Porteous withdrew from
the case, Lifemark would pay Gardner an additional $100,000, at
which time Gardner would withdraw as a counsel. Id. at 395-396;
Stips. 124-126, 1C at 2535; Ex. 35(b), 3B at 1041-1042. On
March 11, 1997, Lifemark filed a motion to enroll Gardner as an
additional counsel. Stip. 123, 1C at 2535. Judge Porteous
acknowledged before the Fifth Circuit Judicial Council that
Gardner's appearance in the case was ``unusual'' given that
Gardner dealt mostly with divorces and family law and had
little expertise in the complex civil issues involved. Ex. 10,
3B at 817-818.
The bench trial began on June 16, 1997, and concluded on
July 23, 1997, at which time Judge Porteous took the case under
advisement. Stip. 128-129, 1C at 2535. During this time, Judge
Porteous continued to socialize with and accept things of value
from Amato, Creely, Gardner, and Levenson. While the case was
under advisement, Creely and Amato continued to take Judge
Porteous out to lunch. Ex. 21(b) and 21(c), 3B at 907-1014. In
May 1999, Creely and Gardner attended a bachelor party in Las
Vegas for Judge Porteous's son, Timothy. On this trip, Creely
paid for Judge Porteous's hotel room for three or four days,
totaling more than $250, as well as meals and entertainment-
related expenses. Creely, 2A at 292-294; Stips. 134-136, 1C at
2536; Ex. 10, 3B at 806-809. Additionally, Amato and Creely's
law firm contributed to a party celebrating Judge Porteous's
five-year anniversary of his appointment to the federal bench.
Amato, 2A at 148; Danos, 2A at 783-784.
Around the same time, Amato went on a fishing trip with
Judge Porteous. Amato testified that, during this trip, Judge
Porteous became emotionally distraught about his financial
problems and worried that he would be unable to pay for his
son's upcoming wedding.\31\ Amato, 2A at 181-182. Upon
returning from the fishing trip, Amato shared his conversation
with Creely and proposed to share the cost with him. Creely and
Amato took equal draws totaling $2,000, from their firm's
account and placed the money in an envelope, which was picked
up by Judge Porteous's secretary, Rhonda Danos. Id. at 143-145;
Creely, 2A at 295-297. When Danos asked what was in the
envelope, Creely's secretary rolled her eyes. In response,
Danos said, ``[N]ever mind, I don't want to know.'' Danos, 2A
at 782-783.
---------------------------------------------------------------------------
\31\Judge Porteous testified before the Fifth Circuit Special
Investigatory Committee that he could not recall this conversation but
did not deny it. Ex. 10, 3B at 787.
---------------------------------------------------------------------------
Judge Porteous also continued to occasionally socialize
with Levenson during the pendency of the case. Sometime between
1996 and 1998, Judge Porteous went on a hunting trip with
Levenson, although no testimony was offered as to whether
Levenson paid for this trip. In April 1999, Levenson attended a
Fifth Circuit Judicial Conference at Judge Porteous's
invitation. At this conference, Levenson paid for Judge
Porteous's meals and drinks. Ex. 10, 3B at 794-795; Stip. 138-
140, 1C at 2536.
On April 26, 2000, three years after the end of the trial,
Judge Porteous issued his ruling in Lifemark Hospitals of La.,
Inc. v. Liljeberg Enterprises, Inc. Stip. 130, 1C at 2535.
Judge Porteous ruled largely in favor of Liljeberg Enterprises,
returning to the Liljebergs the hospital lost earlier in
foreclosure, sustaining the pharmacy contract, and ordering
Lifemark to pay the Liljebergs an award of $10 million, a
portion of the damages sought. Mole regarded this as a
``resounding loss'' for his client. Mole, 2A at 403-404.
Lifemark appealed to the Fifth Circuit, which unanimously
affirmed Judge Porteous's decision in part, reversed in part,
and remanded in part. The Fifth Circuit sided predominately
with Lifemark and was strongly critical of significant parts of
Judge Porteous's reasoning, opining that Judge Porteous's
ruling was ``inexplicable,'' ``a chimera,'' ``constructed
entirely out of whole cloth,'' ``absurd,'' ``close to being
nonsensical,'' and ``not supported by law.'' See Stip. 131, 1C
at 2535; Exs. 62-63, 3B at 1474-1477. Lifemark and Liljeberg
settled within a month of the Fifth Circuit's decision because,
Mole testified, ``[m]y client did not want to go back to Judge
Porteous on the remand.'' Mole, 2A at 408.
a. The House's perspective
The House argues that, during Lifemark, Judge Porteous
intentionally misled the parties and actively concealed the
extent of his relationships with Amato and Levenson. See Amato,
2A at 146-151. By denying the motion seeking his recusal
without disclosing the true nature of these financial
relationships, Judge Porteous deprived Lifemark of a fair trial
and the Fifth Circuit of information necessary to properly
decide the subsequently filed mandamus petition seeking to
remove Porteous from the case. The House suggests that the
Fifth Circuit's decision on this matter would have been
different had it known the extent of Judge Porteous's prior
financial relationship with Amato. See Mole, 2A at 393.
The House additionally maintains that Judge Porteous
continued to abuse his office and position as a federal judge
by accepting and soliciting gifts from the parties' counsels
during the three years that he had the Lifemark case under
advisement. In particular, the House points to Amato's
testimony that Judge Porteous solicited $2,000 for his son's
wedding during a fishing trip in May or June 1999. Amato
recalled Judge Porteous asking for financial assistance, which
was the only time he remembered Judge Porteous directly asking
him for money. Amato, 2A at 143-44, 181-182. The House argues
that, during the pendency of the Lifemark case, Judge Porteous
exercised tremendous leverage over Amato, who worked on little
else but the Lifemark case for two years and stood to recover
nothing if he lost the case. See id. at 136-137. Amato himself
acknowledged that the pending case somewhat affected his
decision to help Judge Porteous. Id. at 235-236.
b. Judge Porteous's perspective
Judge Porteous maintains that he fully acknowledged his
relationship with Amato and Levenson at the recusal hearing.
Judge Porteous asserts that, because there was no kickback
agreement with Amato and Creely, any money given to him by
Amato was given out of friendship. Thus, there was no financial
relationship to disclose. Judge Porteous, moreover, contends
that there was nothing wrong with dining with friends and close
associates. Attorneys in Gretna, Louisiana, often paid for
meals, drinks, gifts, and even trips for judges; it was local
practice and custom. See Creely, 2A at 307-308; Ciolino, 2B at
1506.
Judge Porteous asserts that he was impartial in the
Lifemark case despite the fact that several friends
representing both sides appeared before him. Both Amato and
Gardner testified that they never thought that their
friendships with Judge Porteous would affect his ability to
preside impartially. From the beginning, Gardner told Mole that
his involvement alone would not ``steer the result of the
case'' or ``influence the judge.'' According to Gardner, he
only believed that he would be able to help Lifemark and its
attorneys both to better understand Judge Porteous and to
better present the evidence to him. Mole, 2A at 397, 422-423.
Judge Porteous also dismisses as mistaken the criticisms found
in the Fifth Circuit's opinion, which was written by a panel of
Texas judges on an arcane point of Louisiana law. In Amato's
opinion, the Fifth Circuit's decision overturning Judge
Porteous's ruling was ``wrong, wrong, wrong.'' Stip. 132, 1C at
2535-2536.
Additionally, Judge Porteous argues that the gift of
$2,000, given to him by Amato and Creely, was never meant as a
bribe to affect the outcome of the Lifemark case; Amato himself
testified that he neither viewed the money as a bribe, nor did
he believe that it would have an impact on Judge Porteous's
decision ``one way or the other.'' Moreover, the pending
Lifemark case was not the primary reason Amato gave Judge
Porteous money. Amato testified, ``[I gave him money] because
of my friendship, and I really felt sad for him.'' Amato, 2A at
182-183.
D. Expert Testimony
The House and Judge Porteous each offered one expert
witness whose testimony related to the allegations in Article
I. The House called Professor Charles G. Geyh of the Indiana
University--Bloomington Maurer School of Law as an expert in
judicial ethics. Judge Porteous called Professor Dane Ciolino
of Loyola University Law School as an expert in legal and
judicial ethics. Both witnesses were accepted as experts in
their designated fields. Geyh, 2A at 714-716; Ciolino, 2B at
1480-1485.
1. Professor Charles G. Geyh
Professor Geyh fielded numerous questions about the ethical
behavior of Judge Porteous concerning the allegations in
Article I.\32\ With respect to lunches and trips paid for by
attorneys, Geyh testified, ``[T]here is nothing wrong with
lawyers and judges socializing, . . . [b]ut there is a point
where, you know, a line can be crossed, where what the judge
is, in effect, doing is exceeding the bounds of normal
hospitality and is trading on his position as a judge for
private gain.'' In his opinion, Judge Porteous crossed that
line. Geyh, 2A at 717-718. Geyh said Judge Porteous's conduct
in assigning curatorships to Creely was ``very, very
troubling'' and testified that the behavior was a violation of
the ABA model code of judicial conduct. Id. at 718-721.
---------------------------------------------------------------------------
\32\Geyh based his opinions on the House report and the allegations
set forth within. He admitted that he was not an expert in Louisiana
legal ethics, and that he did not review rulings by Louisiana judges on
issues of judicial misconduct. He did, however, review some materials
from the Louisiana code of judicial conduct dating back to 1984. Geyh,
2A at 744-748.
---------------------------------------------------------------------------
Regarding Judge Porteous's failure to recuse himself from
Lifemark, Geyh stated that, while a judge is not required to
recuse himself simply because a friend is a counsel in the case
before him, ``the judge must disqualify himself in any
proceeding where his impartiality might be reasonably
questioned.'' Id. at 722. Geyh also opined that Judge
Porteous's solicitation of cash from Amato for his son's
wedding violated ethics rules governing gifts. Geyh testified
that based on the evidence of the lunches, curatorship
assignments, and monetary gifts involving Amato and Creely,
Judge Porteous should have disqualified himself. Id. at 724-
727.
2. Professor Dane Ciolino
Professor Ciolino testified about Louisiana's Code of
Judicial Conduct and the ethical standards for governing
Louisiana state court judges. He explained that, during the
time Judge Porteous was on the state bench, the applicable
ethical rules were not bright-line or per se rules, but instead
incorporated the general ``appearance of impropriety''
standard. He considered this to be a vague standard that
offered little guidance to attorneys and judges as to what
exact behavior was deemed unethical. As a result, Ciolino
stated that it was common in Louisiana for firms to offer
judges gifts and lunches, as well as golf, hunting, and fishing
outings. Ciolino, 2B at 1493-1495, 1505-1508.
Ciolino also testified that in Louisiana ``most of the
curatorships are given to friends of the judges, the campaign
contributors for the judges. Sometimes some judges give them to
younger lawyers who are just starting out to help them out [or]
former law clerks.'' Id. at 1511-1512. Curatorships awarded in
conjunction with a bribe or kickback scheme, however, were both
unethical and unlawful, even under the nebulous ``appearance of
impropriety'' standard. Id. at 1512.
While Ciolino testified that the applicable ethical
standards at the time were vague and subject to different
interpretations, Ciolino found the relationship between
attorneys and judges in Louisiana troubling and testified that
he considered most of the alleged conduct to be unethical.
Ciolino additionally testified that any ethical judgment of
Judge Porteous's conduct depends on where one draws the line
along a continuum. Ciolino testified that, in his opinion, if
Judge Porteous did ask for $2,000 from Amato during the
pendency of the Lifemark case, such behavior would be located
on the ``malignant end of the spectrum.'' Id. at 1537-1540.
II. ARTICLE II
A. Text of the Article
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 1980s while he was a
State court judge in the 24th JDC 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.
B. Introduction to the Evidence
Article II focuses on Judge Porteous's relationship with
Louis and Lori Marcotte, the owners of a bail bonds company in
Gretna, Louisiana. This section first examines Judge Porteous's
relationship with the Marcottes first as a state court judge
and then as a federal judge. The evidence presented here is
primarily testimonial, and the parties challenge the
credibility of several witnesses, including the Marcottes (who
pled guilty to federal corruption charges). As with Article I,
the description of the evidence integrates uncontested and
contested facts.
C. Statement of Facts
1. Conduct While a State Court Judge and Relationship With
the Marcottes
a. Bail bonds process and alleged favors
During the 1990s, as a judge on the 24th JDC, Judge
Porteous was part of a rotational system in which one judge
would serve as the ``magistrate'' or ``duty'' judge for a given
week. The magistrate judge was primarily responsible for
reviewing and setting bail and bail bonds, although all judges
in the 24th JDC retained this authority. Griffin, 2B at 1637;
Lori Marcotte, 2A at 576; Louis Marcotte, 2A at 456-457, 506;
Ex. 1113, 3E at 5970.
When a judge sets bail, he determines the amount of money
that a criminal defendant must post with the court as a
condition of temporary release from imprisonment. If a
defendant released on bail appears for his court dates and
complies with other conditions set by the magistrate judge, the
amount posted with the court is eventually returned to the
defendant. If the defendant violates the terms of his release,
the posted bail is forfeited.
A defendant who cannot afford to post the full amount of
the set bail can contract with a commercial bail bondsman, who
posts the bail on the defendant's behalf in exchange for a
premium. The bond premium is typically ten to fifteen percent
of the bail set by the court. A bail bondsman profits from the
premium paid so long as the defendant appears in court;
otherwise, the bail bondsman forfeits the entire bail amount to
the court. When a defendant purchases a bail bond, he does not
recover the premium paid to the bondsman. Louis Marcotte, 2A at
456-458; see also Ex. 442, 3D at 4650-4651.
In the 1980s, Louis Marcotte and his sister Lori started
Bail Bonds Unlimited (BBU) in Gretna, Louisiana. Louis
Marcotte, 2A at 454; Stip. 11, 1C at 2526. By 1993, the
Marcottes controlled approximately 90 percent of the bail bonds
business in the area. In the late 1990s, BBU received
approximately $6 to $7 million in premiums. In the following
years, BBU grew considerably, and in 2003, BBU made
approximately $30 million in premiums and operated in thirty-
four states, with approximately 300 employees and 1,000
licensed bail agents. Louis Marcotte, 2A at 454-455, 501.
Louis Marcotte aggressively pursued a strategy to maximize
BBU's profits. Id. at 456-460. Generally, he sought to have
bail set at the highest amount for which each defendant could
afford to pay the percentage-based premium. In many cases, the
highest bond a defendant can afford may also be the socially
optimal bond level, so as to eliminate unnecessary detention
while providing the maximal incentive for the defendant to
appear. See id. at 504-06. A particular challenge for BBU
occurred when a bond was set at an amount higher than what the
defendant could pay; in such a case, unless the bond was
reduced, the bail bondsman would lose potential business from
that defendant. Id. at 457. BBU would also lose business when a
defendant was released on his own recognizance, so Marcotte
sought to have bail bonds set by a friendly judge before this
occurred. Id. at 457-458.
To achieve this end, a BBU employee or agent would seek to
interview a defendant soon after arrest to gather basic
identifying information, the basis for the arrest, and any
prior criminal history. BBU would also locate, interview, and
run credit reports on family or friends of the defendant
willing to post the bond to determine how much of a bond
premium they could afford to pay. BBU would use this
information to make a bail bond recommendation to a judge. Id
at 455-456, 473-476.
After a bail amount had been set, a judge could also choose
to reduce a bond or approve a ``split'' bond. A split bond is
comprised of two components: a standard commercial bond and a
surety, such as property bond or a promissory note signed by an
individual. For example, if the original bond was set at
$200,000, it could be divided into a $100,000 standard
commercial bond underwritten by the bondsman and a $100,000
property bond or promissory note. Bail bondsmen, including
Louis Marcotte, often favored split bonds because they reduced
the amount of cash premium that a defendant needed to pay the
bondsman and therefore had the same practical effect as a bond
reduction. Id. at 477.
Louis Marcotte testified that the bond-setting practices of
the state judges had an enormous financial impact on his
business because how bonds were set, reduced, or split affected
whether defendants needed the services of a bondsman.
Therefore, a favorable judge willing to exercise discretion in
setting, reducing, and splitting bonds upon the recommendation
of BBU was important to maximizing profits. Id. at 457-460,
472, 474-475; Ex. 447, 3E at 4999.
As a judge on the 24th JDC, Judge Porteous set bail for
criminal defendants and approved bail bonds, including cases
where BBU acted as the bail bondsman. Louis Marcotte met Judge
Porteous through another bail bondsman, Adam Barnett. Louis
Marcotte, 2A at 460; Stip. 145, 1C at 2536. Around September
1993, Judge Porteous began working directly with Marcotte, and
the two became closer. Louis Marcotte, 2A at 511-512.
Marcotte testified that Judge Porteous was ``available to
do bonds at [Marcotte's] request.'' Id. at 472. Then-BBU
employee Jeffrey Duhon indicated that Marcotte enjoyed an
``open door'' policy with Judge Porteous and testified,
``[S]ometimes me and Louis walked in there, they might have had
10, 12 lawyers sitting there, and we just went right by them,
right straight into [Judge Porteous's chambers].'' Duhon, 2A at
613. If a magistrate had not set a bond at all or the bond set
was too high, Marcotte would go to Judge Porteous to have the
bond set or reduced. Louis Marcotte, 2A at 472. On these
occasions, Marcotte testified that he would drop off his
worksheets, which identified how much the defendant could pay,
and Judge Porteous would often approve the amount. Sometimes he
would give Judge Porteous these worksheets himself; other times
he would drop them off with Rhonda Danos, the judge's
secretary. When Marcotte needed a bond set at night or when the
court was not in session, he was able to reach Judge Porteous
on his home phone. Id. at 472-473.
During this time, Judge Porteous developed a social
relationship with Louis Marcotte. Sometime around 1992 to
1994--the precise year is disputed,\33\ Judge Porteous began to
have regular lunches with Louis and Lori Marcotte. These
lunches, for which the Marcottes paid, often included Judge
Porteous, other judges, and local attorneys. Judge Porteous and
the Marcottes would discuss a variety of business and personal
topics at these lunches, including bonds, their families,
sports, and politics. Stip. 144, 1C at 2536.
---------------------------------------------------------------------------
\33\Louis and Lori Marcotte offered somewhat conflicting testimony
about when the regular lunches with Judge Porteous began. Lori Marcotte
believed that the lunches started around 1992. Ex. 448, 3E at 5085-
5086, 5130. Louis Marcotte testified that he recalled that the lunches
began in 1994 or 1995 but said that it could have been earlier; he also
recalled that he began dealing directly with Judge Porteous and taking
him out to lunch following some unfavorable press coverage of Judge
Porteous's dealings with the bondsman Adam Barnett in September 1993.
Louis Marcotte, 2A at 511-513; Ex. 119z, 3C at 2459.
---------------------------------------------------------------------------
Louis Marcotte testified that the lunches, which were
occasionally initiated by Judge Porteous, occurred once or
twice a week, and that BBU always treated the attendees; Judge
Porteous never paid. Louis Marcotte, 2A at 460-465, 513-514;
see Danos, 2A at 804-805; Ex. 442, 3D at 4652-4653; Ex. 448, 3E
at 5085-5186, 5130, 5136-5137. Judge Porteous was allowed to
invite whomever he wished because he was perceived as a leader
at the courthouse, and the Marcottes wanted him to have a good
time. Thus, according to Marcotte, it was common to dine in
groups of up to ten or more people. Louis Marcotte, 2A at 461-
462; Duhon, 2A at 614-615. In these groups, the Marcottes
stated that Judge Porteous would use his influence to persuade
other state court judges and business executives to put trust
in and to develop professional relationships with Louis
Marcotte. Louis Marcotte testified that Judge Porteous
``brought strength to the table.'' Ex. 447, 3E at 5062. Having
lunch with Judge Porteous demonstrated to other judges in
attendance that Louis Marcotte was ``a businessman instead of a
bondsman'' and that the Marcottes were ``trusted people.''
Louis Marcotte, 2A at 462, 489; see Lori Marcotte, 2A at 563.
According to the Marcottes, Judge Porteous helped ``train'' new
state court judges in the practice of setting and splitting
bonds, and even gave a ``sales pitch'' emphasizing the
importance of setting commercial bonds.\34\ Ex. 448, 3E at
5128-5130. Louis Marcotte believed that these lunches were an
investment in his business. Louis Marcotte, 2A at 465; see also
Ex. 442, 3D at 4660; Ex. 448, 3E at 5131-5132.
---------------------------------------------------------------------------
\34\For example, Lori Marcotte testified that Judge Porteous helped
the Marcottes form a relationship with another judge on the 24th JDC,
who was ultimately charged and convicted on federal corruption charges.
According to Lori Marcotte, it was during a lunch with this other judge
that Judge Porteous explained the concept of splitting bonds and
``[t]hat was kind of like the stage of everything else that would
happen.'' Ex. 442, 3D at 4665; see also Ex. 73(a)-(d), 3C at 1917-1936.
---------------------------------------------------------------------------
Although Judge Porteous contests the testimony proffered at
the hearings, several witnesses also stated that Marcotte
arranged and paid for Judge Porteous's car to be repaired and
maintained on multiple occasions. This service included picking
up Judge Porteous's car to have it washed, detailed, and filled
with gas, as well as fixing tires and radios, repairing the
transmission, and performing bodywork. Louis Marcotte, 2A at
466-469. When Judge Porteous needed to have one of his cars
repaired, he or his secretary would let Marcotte know. His cars
would be picked up and taken for maintenance or repairs by
Jeffrey Duhon or Aubrey Wallace, both BBU employees during this
period. Duhon, 2A at 608-610; Wallace, 2A at 634-636. Marcotte
testified that Judge Porteous owned three or four old cars that
``were broken a lot,'' and Marcotte, through BBU, would pay for
repairs ``once a month or once every three months.'' These
repairs, however, occurred over a period of only six or eight
months. Louis Marcotte, 2A at 467-469; Stip. 158, 1C at 2537;
Ex. 442, 3D at 4653-4654; Ex. 448, 3E at 5155.
Several witnesses testified that on one occasion, Marcotte
sent Duhon and Wallace to repair a wooden fence on Judge
Porteous's property after it was damaged in a storm. Louis
Marcotte, 2A at 469, 520-521, 591. Duhon and Wallace testified
that this project was completed in approximately three days and
that Louis Marcotte paid for the necessary materials. Duhon, 2A
at 610-612; Wallace, 2A at 637-638; Ex. 442, 3D at 4654.
Louis Marcotte also provided local judges, including Judge
Porteous, with occasional gifts, including bottles of liquor or
coolers filled with shrimp. Marcotte testified that, with these
gifts, he wanted to ``make a statement'' and would give judges
between $300 and $500 worth of shrimp at a time. According to
Louis Marcotte, Judge Porteous, unlike some state judges, never
refused Marcotte's gifts. Louis Marcotte, 2A at 553, 637; see
Wallace, 2A at 637, 657.
Finally, Louis Marcotte testified that he took at least one
trip with Judge Porteous to Las Vegas in 1993 or 1994. On this
trip, Marcotte and Judge Porteous were joined by two local
attorneys who were friends of Marcotte, several friends of
Judge Porteous, and another state court judge. Marcotte
testified that, ``given the stain that the bail bonds business
has at the national level,'' he felt that it was important for
Judge Porteous to invite some attorneys on the trip so ``it
wouldn't look so bad with him going to Las Vegas with me.''
Louis Marcotte, 2A at 469-471. According to Marcotte, Judge
Porteous's expenses were split between him and the two local
attorneys, who paid Danos in cash. Danos then deposited the
money into her account and ``cut the checks for [Judge
Porteous's] tickets.''\35\ Louis Marcotte explained that they
reimbursed Judge Porteous for his trip in this manner to ``hide
it from the world.'' Id. at 471; see also Lori Marcotte, 2A at
561-562; Ex. 442, 3D at 4654, 4664; Ex. 447, 3E at 5026-
5027.\36\
---------------------------------------------------------------------------
\35\Danos also accompanied the Marcottes to Las Vegas on several
occasions, and the Marcottes paid for these trips ``because she was
Judge Porteous's secretary and we wanted to get some help from that
office.'' Lori Marcotte, 2A at 561-562. Danos testified that she
believed that Judge Porteous was aware that the Marcottes were paying
her way. Judge Porteous disagrees that he had any knowledge of this.
Danos, 2A at 788, 803, 807-808; Ex. 448, 3E at 5092, 5096, 5180-5182.
\36\The House also points to Judge Porteous's failure to disclose
his attendance at conventions of the Professional Bail Agents of the
United States in 1996 and 1999 on his annual disclosure forms as
additional evidence that Judge Porteous was attempting to hide his
relationship with the Marcottes. Ex. 102a, 3C at 2141-2144; Ex. 105a,
3C at 2384-2387.
---------------------------------------------------------------------------
i. The House's perspective
The key factual disagreement regarding this article is
whether, as the House alleges, Judge Porteous engaged in a
corrupt scheme with the Marcottes to set bail and reduce or
split bonds in criminal cases to maximize their profits at the
expense of defendants, their families, and the public in
exchange for things of value. In particular, the House alleges
that Judge Porteous's enjoyment of free meals, repairs, and
gifts from the Marcottes was linked to his favorable bail bonds
decisions and other official actions he undertook on their
behalf. While an occasional meal gifted by a professional
associate may not be worrisome, the House argues that the
evidence proves that Judge Porteous and the Marcottes had a far
more extensive arrangement of regular, expensive meals that
often included heavy drinking. The House contends that a number
of witnesses corroborate key elements of the Marcottes'
testimony about these meals, including Judge Porteous's
secretary, Rhonda Danos, and other employees of BBU. Danos, 2A
at 804-805; Duhon, 2A at 614-615; Griffin, 2B at 1650-1651.
According to the House, the lunches, home and car repairs,
and other favors Louis Marcotte gave to Judge Porteous were in
return for greater access to the judge and to strengthen the
Marcottes' bail bonds business. While giving Judge Porteous
things of value, the Marcottes testified that they frequently
circumvented the magistrate or duty judge assigned to handle
bonds for the 24th JDC to have Judge Porteous set bonds at
their preferred amounts. According to Louis Marcotte, his close
relationship allowed him direct access to Judge Porteous
whenever he thought Judge Porteous would set a more favorable
bond than the assigned magistrate. Louis Marcotte, 2A at 458-
460, 471-479; Ex. 447, 3E at 5064-5065.
The House contends that the Marcottes enjoyed special
access to Judge Porteous. Louis Marcotte testified that they
would go by Judge Porteous's chambers, drop off paperwork with
Rhonda Danos, or call at Judge Porteous at night or on the
weekend when the courthouse was not open. See Louis Marcotte,
2A at 473; see also Duhon, 2A at 612-613; Wallace, 2A at 633.
Marcotte testified that after he took Judge Porteous to lunch
or cared for his car, Judge Porteous would be ``more apt to do
things'' for them. Louis Marcotte described the reasons he gave
Judge Porteous things of value: ``I wanted service, I wanted
access, and I wanted to make money'' and ``[Judge Porteous]
would do more when we would do more for him.'' Louis Marcotte
believed that Judge Porteous knew he was helping BBU make money
by setting favorable bonds. Louis Marcotte, 2A at 471-479, 553-
554; Ex. 442, 3D at 4655; Ex. 447, 3E at 4987, 5048; see also
Ex. 448, 3E at 5193.
Marcotte testified that his special access to Judge
Porteous for bond decisions continued until the very end of his
state court tenure in October 1994. Louis Marcotte, 2A at 517-
519. The House points to documentary evidence that Judge
Porteous signed twenty-nine bonds for BBU in October 1994;
twenty-seven of these bonds were signed after his Senate
confirmation on October 7, 1994. Stips. 152-153, 1C at 2537.
The House characterizes these bonds as a late rush by the
Marcottes and Judge Porteous to capitalize on their corrupt
relationship before Judge Porteous took the federal bench.
Furthermore, the House alleges that there was a connection
between Louis Marcotte's favors and Judge Porteous's official
actions. Louis Marcotte made no pretense that the expensive
meals and other favors he gave Judge Porteous were anything but
shrewd investments in his bail bonds business. See, e.g., Louis
Marcotte, 2A at 471-479, 553-554. Judge Porteous in turn
provided BBU direct access to his chambers to deal with bond
issues. The House notes that not all judges worked directly
with bondsmen and that at least three judges in the 24th JDC
would work only with lawyers rather than with the bondsmen. See
Griffin, 2B at 1652-1653.
ii. Judge Porteous's perspective
Judge Porteous denies that he set, reduced, or split bonds
to favor the Marcottes in exchange for meals and other things
of value and argues that the House's evidence consists only of
general, misleading testimony about the bond setting process
and Judge Porteous's relationship with the Marcottes. Judge
Porteous argues that the House exaggerated both the frequency
and cost of the meals for which the Marcottes allegedly paid.
To support this claim, Judge Porteous points to the House's
lack of documentary evidence of any meal purchased by the
Marcottes for Judge Porteous while he was on the state bench.
Moreover, Judge Porteous argues that when these meals occurred,
they were in the open and in public restaurants; he asserts
that no one tried to hide the fact that they were dining
together because the acceptance of the lunches was common and
customary in Gretna and did not violate any applicable rules or
ethical obligations.\37\ See Louis Marcotte, 2A at 514, 539.
Judge Porteous contends the purpose of these lunches was more
social in nature than business-oriented and that the
conversation tended to focus on matters unrelated to work. See
Lori Marcotte, 2A at 587; Louis Marcotte, 2A at 513-514.
Furthermore, Judge Porteous argues that there was nothing
improper about accepting occasional meals as gifts, and no
connection between the occasional lunches he had with the
Marcottes and the bail bonds he set. Id. at 514-515; Griffin,
2B at 1641-1642, 1650-1651.
---------------------------------------------------------------------------
\37\Testimony regarding ethics rules is discussed in section D.
---------------------------------------------------------------------------
Although Judge Porteous acknowledges that he occasionally
accepted meals from the Marcottes, he asserts that the
testimony that Louis Marcotte paid for car and home repairs or
trips to Las Vegas is grossly overstated. Judge Porteous
disputes that Marcotte routinely paid for car repairs and
maintenance and, while offering no contradictory testimony,
notes that no documentary evidence corroborates any of the
testimony offered by the House, all of which is from witnesses
who are convicted felons. See Louis Marcotte, 2A at 521-522.
Moreover, Judge Porteous similarly disputes testimony that
Louis Marcotte ever had his fence repaired and emphasizes that
the House has no records or documentation to corroborate this
claim. On cross-examination, Marcotte admitted that he never
saw the repaired fence. Judge Porteous also challenges the
credibility of Aubrey Wallace and Jeffrey Duhon, the two BBU
employees allegedly sent to repair the fence, by noting Louis
Marcotte's testimony that they were known to use illegal
narcotics while on the job. See id. at 519-521; Wallace, 2A at
656-657; Stips. 156, 157, 1C at 2537.
Judge Porteous does not deny that he received occasional
gifts of shrimp and liquor from Louis Marcotte, but he points
to Marcotte's testimony that such gifts were provided to all of
the local judges and many court personnel, at least during the
holiday season. See Louis Marcotte, 2A at 538-539; Wallace, 2A
at 637, 657; Ex. 448, 3E at 5139-5143.
Judge Porteous also denies that Louis Marcotte paid for any
trip to Las Vegas, noting that no documentary evidence of the
details of those expenses has been introduced. To support this
position, Judge Porteous points to Marcotte's uncertainty over
whether he was accompanied by Judge Porteous on one or two
trips while on the state court, as well as Marcotte's admission
that Judge Porteous may have been traveling to Las Vegas in a
professional capacity to speak at a Professional Bail Agents of
the United States (PBUS) convention, in which case the PBUS
would have compensated Judge Porteous for his travel costs and
hotel room. See Louis Marcotte, 2A at 522-525; Ex. 447, 3E at
5026-5027.
Judge Porteous argues that he never set, reduced, or split
bonds in order to benefit the Marcottes' bail bonds business.
He defends his practice of managing bonds in the context of an
imperfect criminal justice system. Judge Porteous maintains
that he was a proponent of using commercial and split bonds to
address chronic problems such as jail overcrowding and that
aggressive use of commercial bonds, in this context, was in the
public interest.\38\ Louis Marcotte, 2A at 504-506; Lori
Marcotte, 2A at 579-582. During the relevant period, the
Jefferson Parish Correctional Center was under a federal court
consent decree that limited its capacity to 700 inmates. Under
the circumstances, many defendants who were not released on
bond might be released instead on personal recognizance under
the terms of the consent decree. Bodenheimer, 2B at 1180-1183,
1193-1194; Mamoulides, 2B at 1562-1566; Stip. 162, 1C at 2538.
John Mamoulides, the District Attorney in Jefferson Parish from
1972 until 1996, agreed that defendants released on commercial
bonds were more likely to appear for required court dates
because there was another interested party, the bondsman, who
would be actively looking for those who ``jumped bond.''
Mamoulides, 2B at 1574-1575. Former Judge Ronald Bodenheimer
testified that Judge Porteous was viewed as an experienced
judge on criminal matters, a public advocate for commercial
bonds, and a local leader in finding a solution to the jail
overcrowding problem. Bodenheimer, 2B at 1171, 1179-1180, 1187-
1188, 1193-1194.
---------------------------------------------------------------------------
\38\According to studies cited by Judge Porteous, defendants are 28
percent more likely to appear when released on bonds rather than on
their own recognizance. See Ex. 1134, 3E at 6071.
---------------------------------------------------------------------------
Judge Porteous notes that the House has not identified a
single particular bond that he improperly set, split, or
reduced. Furthermore, given that the Marcottes held a near-
monopoly of the bail bonds business around the 24th JDC, he
argues that he essentially had to deal with the Marcottes when
setting bail or deciding bonds. This problem was exacerbated,
according to Judge Porteous, because other judges on the 24th
JDC disliked magistrate duty, were hard to reach, and did not
like setting bonds. Thus, it was common for bail bondsmen and
attorneys to bypass the assigned magistrate and seek out
another judge to secure a bond. Bodenheimer, 2B at 1188-1191;
Griffin, 2B at 1638-1639; Lori Marcotte, 2A at 576-577; Louis
Marcotte, 2A at 506-507; Ex. 448, 3E at 5118-5122.
According to Judge Porteous, he neither ``invented'' split
bonds nor was the only judge who used them; split bonds were
very common in the early to mid 1990s. Bodenheimer stated that,
of the 16 judges in the 24th JDC, ``[all] of them used the
split bond concept.'' Bodenheimer, 2B at 1181, 1185. The
Marcottes also went to many other judges to set, reduce or
split bonds. Lori Marcotte, 2A at 582; Louis Marcotte, 2A at
508-510; Mamoulides, 2B at 1576; Ex. 447, 3E at 4989.
Judge Porteous insists that he gave no ``special access''
to the Marcottes but maintained an open-door policy to his
chambers for everyone. Danos, 2A at 800; Griffin, 2B at 1639.
Rhonda Danos, Judge Porteous's former secretary, testified that
the Marcottes did not receive special access or treatment from
chambers. Danos, 2A at 786-787, 800-801. Moreover, Danos and
Darcy Griffin, Judge Porteous's criminal clerk, testified that
Judge Porteous did not merely take Marcotte's assertion that a
certain bond level was appropriate at face value. Before
setting, reducing, or splitting a bond, it was his standard
operating procedure to have a member of his staff call the jail
and obtain information related to the criminal background of
the arrestee. Id. at 799-800; Griffin, 2B at 1640-1641. Lori
Marcotte indicated that, at times, Judge Porteous would
personally call the jail, rather than have his staff perform
this duty and, on occasion, rejected bond requests. Lori
Marcotte, 2A at 577-578; Ex. 448, 3E at 5115-5116; see also
Danos, 2A at 799-800; Griffin, 2B at 1641; Louis Marcotte, 2A
at 510-511; Wallace, 2A at 654.
Judge Porteous refutes the House's theory that he approved
an unusually large number of bonds in October 1994 before he
was sworn in as a federal judge. He notes that the House failed
to offer evidence of the average number of bonds handled by a
judge on the 24th JDC and cites evidence that, as a state
judge, he signed just as many, if not more, bonds in other
months. Exs. 2002-2004, 3E at 6077-6197. Thus, twenty-nine
bonds in a month for BBU, which held a near monopoly of the
bail bonds business in that courthouse, was not an unusually
high number. Griffin testified that twenty-nine bonds processed
in a month was a low number. Griffin, 2B at 1646.
b. Set aside and expungement of criminal convictions
Judge Porteous's actions involving the process to expunge
the criminal convictions of BBU employees Jeffrey Duhon and
Aubrey Wallace in the early 1990s are also at issue. Louis
Marcotte wanted Duhon and Wallace to obtain bail bondsman
licenses to expand his business, but their prior criminal
convictions precluded them from doing so. Duhon, 2A at 616;
Louis Marcotte, 2A at 479-480. Both Duhon and Wallace testified
that Marcotte had spoken with Judge Porteous about the
expungement of their prior criminal convictions. According to
Duhon, he was told that Marcotte would ``take care'' of Duhon's
criminal conviction so that he could get a bail bondsman
license; one of Duhon's two felony convictions was eventually
expunged by Judge Porteous. Duhon, 2A at 616-618. Wallace also
testified that he believed that the set-aside of his burglary
conviction was done by Judge Porteous at Marcotte's request, an
accusation that Judge Porteous has denied. Wallace, 2A at 641;
Goyeneche, 2A at 681-682.
In Louisiana, there are multiple steps for expunging a
criminal conviction. If a judge did not originally sentence a
defendant under ``Article 893,'' a motion must first be made to
amend the sentence to an Article 893 sentence. Article 893 of
the Louisiana Code of Criminal Procedure permits a sentence to
be set aside if probation is successfully completed.\39\ An
individual must then petition for the enforcement of Article
893 upon satisfactory completion of probation. After
petitioning for the enforcement of Article 893, a motion must
be made to set aside the conviction, and finally, a separate
motion must be made to expunge the conviction. These last two
steps are primarily administrative and routine steps if the
motion to amend sentence and the petition to enforce Article
893 are granted without objection. Rees, 2B at 1769, 1793-1794.
---------------------------------------------------------------------------
\39\Article 893(E) of the Louisiana Code of Criminal Procedure
states, in relevant part,
---------------------------------------------------------------------------
When the imposition of sentence has been suspended by the
court for the first conviction only, as authorized by this
Article, and the court finds at the conclusion of the
probationary period that the probation of the defendant has
been satisfactory, the court may set aside and dismiss the
prosecution and the dismissal of the prosecution shall have
the same effect as acquittal, except that said conviction
may be considered as a first offense and provide the basis
for subsequent prosecution of the party as a multiple
offender, and further shall be considered as a first
offense for purposes of an other law or laws relating to
cumulation of offenses. Dismissal under this Paragraph
shall occur only once with respect to any person.
Duhon had two convictions from 1976 on his record. One
conviction was set aside and expunged by Judge E.V. Richards on
July 22, 1992. Ex. 2006, 3E 6203-6214. A second conviction was
set aside by Judge Richards on or about June 17, 1993, but
Judge Porteous signed the expungement order on July 29, 1993.
After his record was cleared of his convictions, Duhon
eventually obtained a bail license. Duhon, 2A at 607; Stip.
148, 1C at 2537; Exs. 77(a)-(c), 3C at 1937-1943.
Wallace had a drug conviction arising from a December 1988
arrest and a burglary conviction from a May 1989 arrest.
Wallace pled guilty to and was first sentenced on the burglary
charge, which arose from the second arrest. Judge Porteous
sentenced Wallace on June 26, 1990, to a three-year suspended
sentence and two years of probation. On October 15, 1990, while
on probation, Wallace pled guilty and was sentenced to five
years imprisonment for the earlier drug charge. Wallace's
guilty plea on the drug charge and prison sentence triggered a
violation of his terms of probation on his burglary conviction
and caused the unsatisfactory termination of his probation.
Wallace completed his drug sentence and was released from
prison in August 1993. Wallace, 2A at 656; Ex. 81, 3C at 1944-
2004.
On September 20, 1994, attorney Robert Rees filed a motion
to amend Wallace's burglary sentence to an Article 893 sentence
to begin clearing Wallace's criminal record. On September 21,
1994, Judge Porteous held a hearing and ordered that Wallace's
record in the burglary case be amended to remove the
unsatisfactory completion of probation and to amend the
sentence to one under Article 893. Stip. 149, 1C at 2537. On
September 22, 1994, Judge Porteous amended Wallace's burglary
sentence to reflect that he had pled under Article 893. Stip.
150, 1C at 2537. On October 14, 1994, Judge Porteous entered an
order setting aside Aubrey Wallace's 1989 burglary conviction.
Stip. 151, 1C at 2537; Ex. 81, 3C at 1944-2004; Ex. 82, 3C at
2005-2111. Judge Porteous, however, never entered an
expungement order on Wallace's burglary conviction.
The parties offered conflicting evidence on whether Judge
Porteous erred as a matter of law in setting aside Wallace's
conviction. Several sections of the Louisiana Code of Criminal
Procedure were referenced in testimony regarding the judicial
authority to set aside a sentence that had already been
served.\40\
---------------------------------------------------------------------------
\40\In addition to Article 893, Articles 881 and 882 were also
discussed. Article 881 provides that ``the Court may amend or change
the sentence, within the legal limits of its discretion, prior to the
beginning of the sentence.'' Ex. 69(d), 3B at 1823. Article 882 permits
the court to correct or review an ``illegal'' sentence. Id. at 1824-
1828.
---------------------------------------------------------------------------
Although Mike Reynolds, the Assistant District Attorney who
was present for the hearing on the motion to amend Wallace's
sentence, did not object in court, Reynolds later reported that
Judge Porteous had unlawfully set aside Wallace's conviction to
the Metropolitan Crime Commission (MCC), a local nonprofit
organization that investigates crime and corruption.\41\ Rafael
Goyeneche, the President of the MCC, investigated the facts and
agreed with Reynolds that Article 881, which allows for
correction of a sentence ``prior to the beginning of the
sentence,'' precluded Judge Porteous from invoking Article 893
after the commencement of Wallace's sentence and ultimately
ordering an expungement of his record. Goyeneche, 2A at 670,
672-674, 681-687.
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\41\John Mamoulides, the Jefferson Parish District Attorney during
the relevant period, could not explain why Reynolds--if he had
reservations about the set aside--did not object at the hearing or
raise the issue with his supervisors before going to the MCC.
Mamoulides, 2B at 1596-1598.
---------------------------------------------------------------------------
Rees, Wallace's attorney, disagreed and explained that
regardless of whether Article 893 was explicitly referenced in
Wallace's original suspended sentence on the burglary
conviction, it was necessarily invoked because that section
provided the sole authority for a judge in a felony case to
order a suspended sentence and probation. Rees, 2B at 1784-
1786, 1799-1800. In other words, Rees believed that the motion
to amend was a mere formality because the underlying sentence
was already an Article 893 sentence. According to Rees, the
motion to amend Wallace's sentence was therefore lawful and
proper. Id. at 1773, 1779-1780; Ex. 69(d), 3B at 1803-1822. In
addition, Rees stated that in the first place, it had been
``incorrect to terminate [Wallace's] probation based on that,
the fact that he got jail time as a result of a prior arrest.''
The wrongful termination of Wallace's probation, in his view,
permitted Judge Porteous to go back, review, and amend the
sentence under Section 882. Rees, 2B at 1765-1768.
i. The House's perspective
The House argues that Judge Porteous intervened in a highly
questionable manner to expunge the conviction of Jeffrey Duhon
in a case assigned to another judge and violated Louisiana law
in setting aside Aubrey Wallace's sentence. In the House's
view, Judge Porteous's actions constituted improper favors
provided to Louis Marcotte.
The House contends that Judge Porteous completed the
expungement of Duhon's burglary conviction at the request of
Louis Marcotte, a point supported by both Marcotte's and
Duhon's testimony. The House asserts that Judge Porteous's
action in expunging Duhon's conviction was noteworthy because a
judge in another section of the court originally had sentenced
Duhon and completed all but the final step in the expungement
process. Duhon, 2A at 616-618; Louis Marcotte, 2A at 480-481;
Ex. 442, 3D at 4656.
The House also considers the set aside of Wallace's
burglary conviction as an egregious example of misconduct. The
House maintains that Louis Marcotte repeatedly asked Judge
Porteous to set aside Wallace's felony burglary conviction in
the summer of 1994, around the time that Judge Porteous was
nominated to the federal bench. Notwithstanding Rees's
interpretation of the applicable provisions, the House insists
that Article 881 precludes the amendment of a sentence after
its commencement. Judge Porteous nonetheless amended Wallace's
sentence, which he had already served, to permit relief under
Article 893 and to set aside the conviction. Goyeneche, 2A at
683-687; Louis Marcotte, 2A at 487-488; Wallace, 2A at 643-644;
see also Rees, 2B at 1783.
The House alleges that the timing of Judge Porteous's
actions to set aside Wallace's conviction was motivated by his
Senate confirmation to the federal bench. According to
Marcotte, ``[Judge Porteous] said look, Louis, I'm not going to
let anything stand in the way of me being confirmed and my
lifetime appointment, so after that's done, I will do it.''
Louis Marcotte, 2A at 487. The House argues that the
confirmation timeline corroborates Marcotte's testimony by
showing that Judge Porteous set aside Wallace's conviction on
October 14, 1994, one week after the Senate confirmed him on
October 7, 1994, and two weeks before he was sworn in on
October 28, 1994. Id. at 488; Stips. 14, 16, 1C at 2527; Ex.
442, 3D at 4659; see Rees, 2B at 1793-1795.
ii. Judge Porteous's perspective
Judge Porteous contends that the House misconstrues what
happened and wrongly interprets the applicable Louisiana law.
He maintains that what he did in these cases was to act on a
routine, administrative request for Duhon and to correct a
legal error from his prior order terminating Wallace's
probation.
Judge Porteous counters that the witness testimony
proffered by the House regarding his role in the Duhon
expungement is wrong and that Marcotte and Duhon were both
discredited on this point at the evidentiary hearings. While
Marcotte and Duhon both testified that Judge Porteous cleared
the burglary conviction from Duhon's record, the documentary
evidence shows that another judge had granted the motion to
amend the sentence, the petition to enforce Article 893, and
the motion to set aside the conviction. About a month after the
motion to set aside was granted by Judge Richards following a
hearing, Judge Porteous granted the motion for expungement--the
final, administrative step in the process. This fact, in Judge
Porteous's view, undermines the credibility of Marcotte and
Duhon. See Duhon, 2A at 620-624; Louis Marcotte, 2A at 527-529;
Ex. 77(a)-(c), 3C at 1937-1943.
Judge Porteous also maintains there was nothing improper in
his handling of the set aside of Aubrey Wallace's burglary
conviction. In fact, Judge Porteous went beyond the minimum
required by statute and scheduled a ``show cause'' hearing on
the motion to amend Wallace's conviction, providing the
District Attorney with an opportunity to object. See Rees, 2B
at 1752, 1761-1762. Judge Porteous insists that the motion to
amend had merit because Wallace's probation on the burglary
charge was wrongly terminated; his plea and sentence on the
drug charge did not violate the terms of his probation on the
burglary conviction because the drug arrest pre-dated the
burglary arrest. Rees, who represented Wallace and filed the
motion to set aside the conviction, testified that Judge
Porteous's actions were not wrong as a matter of law. Id. at
1750, 1773, 1799-1800.
Judge Porteous argues that there is no evidence that the
set aside of Wallace's conviction was either a pre-arranged
deal with Louis Marcotte or timed to avoid scrutiny during
Judge Porteous's Senate confirmation. Judge Porteous insists
that he acted on a routine motion to set aside a conviction
that was properly noticed and filed on behalf of Wallace to
which the District Attorney's office did not object. Rees, 2B
at 1749-1750, 1756-1761, 1764-1774, 1783, 1800; Ex. 69(d), 3B
at 1818-22; see also Ex. 82, 3C at 2005-2111. Judge Porteous
also argues that the House's asserted motive is doubtful
because even if Wallace's burglary conviction had been
expunged, he still would have been ineligible to serve as a
bail bondsmen because of his separate drug conviction. To
address the drug conviction, Wallace would have needed a pardon
from the governor. See Rees, 2B at 1765-1766; Wallace, 2A at
643, 658-659.\42\
---------------------------------------------------------------------------
\42\Judge Porteous also relies on the testimony of Wallace, who
stated that it was he who wanted to pursue a bail bondsman license.
When Wallace--now a reverend--was asked whether he deserved the amended
sentence and the set aside, he replied, ``I just think I was shown some
compassion.'' Wallace stated that, since his conviction was amended and
set aside, he has seen Judge Porteous on occasion, and that he could
tell Judge Porteous viewed Wallace with ``a sense of pride.'' Wallace,
2A at 639-640, 644, 659-660.
---------------------------------------------------------------------------
c. Louis Marcotte's interview with the FBI
In 1994, the FBI interviewed Louis Marcotte as part of its
background investigation of Judge Porteous, who was being
considered for an appointment to the U.S. District Court for
the Eastern District of Louisiana. The FBI interviewed Louis
Marcotte on or about August 1, 1994. Stips. 171, 178, 1C at
2539. Marcotte testified that Judge Porteous told him that the
FBI was going to be coming to interview him. Louis Marcotte, 2A
at 482.
According to the written summary of the interview prepared
by the FBI, Marcotte explained that he was a professional and
social acquaintance of Judge Porteous who ``sometimes [went]
out to lunch with the candidate and attorneys in the area.''
Stip. 179, 1C at 2539. Marcotte also told the FBI that Judge
Porteous was ``really helpful and available for everybody'' and
was ``open-minded and fair, but [was] not a push-over.'' In his
interview, Marcotte generally discussed bond setting practices
in the Jefferson Parish courthouse and his bail bonds business.
Ex. 69(b) (full exhibit, at 471).\43\
---------------------------------------------------------------------------
\43\The Committee admitted Exhibit 69(b), the FBI background
investigation file for Judge Porteous's federal nomination, with
certain limitations. Parts of Exhibit 69(b) are part of the public,
certified record; however, the full exhibit is available only to
Senators upon their request. Citations to portions of the exhibit that
were not included into the public record will reflect a general
citation to the full exhibit and the appropriate Bates number.
---------------------------------------------------------------------------
Also in this interview, Marcotte denied knowledge of any
abuse of alcohol or prescription drugs by Judge Porteous;
Marcotte stated that Judge Porteous would have a beer or two at
lunch but Marcotte had never seen him drunk. Marcotte also told
the FBI that he had ``no knowledge of the candidate's financial
situation'' and assured the FBI 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
that would impact negatively on the candidate's character,
reputation, judgment, or discretion.'' Id. After the interview,
Marcotte told Judge Porteous, ``Thumbs up.'' Louis Marcotte, 2A
at 486.
At the evidentiary hearings, however, Marcotte testified
that his statements to the FBI in 1994 about Judge Porteous's
financial circumstances, his alcohol usage, and general
``integrity'' were false. According to Marcotte, he lied to
protect Judge Porteous because the Judge was someone who had
been good to him, and Marcotte wanted to aid Judge Porteous's
appointment to the federal bench. Louis Marcotte, 2A at 483-
485.
i. The House's perspective
The House argues that Louis Marcotte lied to the FBI during
its background investigation of Judge Porteous to help him
attain his judicial appointment and to protect against the
exposure of their corrupt relationship. Marcotte was a close
and trusted associate who could be counted on by Judge Porteous
to say positive things, even if that meant lying, given all
that Judge Porteous had done for Marcotte over the years. In
other words, Marcotte's lies on Judge Porteous's behalf were an
element of their corrupt relationship.
ii. Judge Porteous's perspective
Judge Porteous argues that Marcotte did not say anything
demonstrably false in his FBI interview. Statements to the
effect that Judge Porteous may have appeared drunk are
uncorroborated; the available documentary evidence only shows
that Judge Porteous had one or two drinks at lunches. Exs.
372(a)-(d), 3D at 4394-4401; Ex. 373(d), 3D at 4408-4410.
Furthermore, Judge Porteous contends that Marcotte could not
have lied about Judge Porteous's financial condition because
Marcotte had no direct knowledge of his financial affairs. He
argues Marcotte's contrary impeachment trial testimony is based
solely on his observations about the decrepit state of Judge
Porteous's cars, ``lifestyle,'' and gambling habits. Louis
Marcotte, 2A at 535.
Finally, with regard to Marcotte's response to the
compromise-or-coercion question, Judge Porteous points to
Marcotte's own admission that he would have never extorted or
blackmailed Judge Porteous. See id.; Ex. 447, 3E at 5052-5053.
Even when asked if Marcotte had information that could
potentially embarrass Judge Porteous and be used as leverage
against him, Marcotte responded, ``But I would have never
leaned on him that kind of way. I would do without before I
would have leaned on him in that kind of way.'' Id. at 4971,
5053. From this testimony, Judge Porteous maintains that
Marcotte himself refutes the House's allegations.
2. Conduct While a Federal Court Judge and Relationship
With the Marcottes
It is uncontested that after Judge Porteous became a
federal judge, his relationship with Louis Marcotte changed,
and their lunches became less frequent. Nonetheless, records
submitted as evidence show that the Marcottes paid for lunches
with Judge Porteous on at least six occasions.\44\ Stip. 164,
1C at 2538; Exs. 372(a)-(d), 3D at 4394-4401; Ex. 373(a), 3D at
4402-4404; Ex. 373(c), 3D at 4405-4407; Ex. 373(d), 3D at 4408-
4410; Ex. 375, 3D at 4411. Moreover, Louis Marcotte testified
that he tried to maintain his relationship with Judge Porteous.
Louis Marcotte, 2A at 489-490.
---------------------------------------------------------------------------
\44\For example, in 1997, the Marcottes set up two lunches with
Judge Porteous and two justices of the peace, who also had the ability
to set bonds. At this lunch, Judge Porteous vouched for the Marcottes,
but in both cases, the justices of the peace were uncomfortable with
forming a professional relationship with them. Lori Marcotte, 2A at
563-564; Ex. 447, 3E at 5035-5038; Ex. 448, 3E at 5187-5188. Judge
Porteous also met with an official from the insurance company that set
the Marcottes' bond writing authority. At this lunch, Judge Porteous's
presence helped the Marcottes ``to develop trust, [a good] reputation,
[and] stability . . . on our part,'' which were important in securing
the ability to write larger bonds from the insurance company. Lori
Marcotte, 2A at 564-565.
---------------------------------------------------------------------------
In March 2002, Marcotte arranged a lunch at Emeril's
Restaurant with Judge Porteous and Judge Ronald Bodenheimer of
the 24th JDC, a relatively new state court judge; Marcotte
wanted Bodenheimer to ``step into [Judge Porteous's] shoes.''
Id. at 490. Prior to that lunch, Judge Bodenheimer ``kind of
stayed away from Louis Marcotte intentionally,'' because, at
that time, ``the rumor was that [Marcotte] was doing drugs.''
Bodenheimer, 2B at 1174-1175. Judge Porteous, however, spoke
highly of Louis Marcotte's honesty in the bond business, and
Bodenheimer took Judge Porteous's statements seriously. Id. at
1171-1175, 1177; Louis Marcotte, 2A at 462, 490; see Stip. 166,
1C at 2538; Ex. 447, 3E at 5036-5037. Bodenheimer also
testified that, at some other time, Judge Porteous told him
that now that Bodenheimer was a judge ``he would never have to
buy lunch again.'' Bodenheimer clarified that he thought the
statement to be made in jest. Bodenheimer, 2B at 1175-1177.
According to Louis Marcotte, after this lunch he provided
meals, house repairs, and a trip to the Beau Rivage casino to
Bodenheimer, and in return, Bodenheimer ``became helpful to the
Marcottes in setting bonds.'' Louis Marcotte, 2A at 490-491;
see Ex. 375, 3D at 4411; Ex. 442, 3D at 4661; Ex. 447, 3E at
5040-5041; Ex. 448, 3E at 5144. In his testimony, however,
Bodenheimer maintained that Judge Porteous never told him what
to do in relation to the Marcottes, nor did Bodenheimer feel
that Judge Porteous ever used his position as a federal judge
to pressure Bodenheimer to work with the Marcottes or to issue
any bonds. Judge Porteous simply told Bodenheimer that he could
trust the Marcottes when it came to providing information
related to a particular offender. Bodenheimer always verified
the information provided by Marcotte and ``never, ever caught
him in a lie.'' Bodenheimer, 2B at 1197. Moreover, Bodenheimer
stated that the pressure to set bonds, in general, came from
the fact that many defendants would be subject to release on
personal recognizance due to a federal court decree. Given this
situation and BBU's dominance in the area, Bodenheimer
testified that he believed that working with the Marcottes was
unavoidable. Id. at 1172-1173, 1178-1183, 1196-1197.
Louis Marcotte pled guilty in 2004 to criminal racketeering
charges arising from his bail bonds business. Lori Marcotte
pled guilty to conspiracy to commit mail fraud in 2004.
Bodenheimer pled guilty in 2003 to three counts, including one
count of honest services fraud. Ex. 71(a), 3B at 1848, 1858-
1859; Ex. 71(e), 3C at 1891-1896; Ex. 88(d), 3C at 2112-2115;
Ex. 88(f), 3C at 2122-2133; Ex. 88(h), 3C at 2136.
i. The House's perspective
The House argues that, when Judge Porteous became a federal
judge, he could do less for the Marcottes, and, accordingly,
the Marcottes did less for him. After his appointment to the
federal bench, the Marcottes no longer repaired Judge
Porteous's cars or home. See Lori Marcotte, 2A at 591; Louis
Marcotte, 2A at 522; Wallace, 2A at 657. Nevertheless, the
House maintains that the Marcottes continued to pay for some
lunches and drinks, and that Judge Porteous assisted them by
using the power and prestige of his office to recruit state
judges to fill his former position as the ``go-to'' judge for
the Marcottes in setting bonds.
The Marcottes and BBU also paid for meals and drinks for
Judge Porteous when he was invited to speak at the annual
convention of the Professional Bail Agents of the United States
(PBUS) in 1996 and 1999. In 1996, the convention was held in
New Orleans and hosted by the Marcottes. In 1999, the
convention was held in Biloxi, Mississippi, and although PBUS
paid for Judge Porteous's room and some expenses, the Marcottes
subsidized other meals and drinks. Lori Marcotte, 2A at 565-
566; Ex. 90(a), 3C at 2137-2138; Ex. 90(b), 3C at 2139-2140.
The House asserts that the charges against Bodenheimer
mirror the current allegations against Judge Porteous, in that
Bodenheimer was charged with ``enrich[ing] 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.''
According to the House, Louis Marcotte, Lori Marcotte, and
Bodenheimer all pled guilty to charges arising out of their
corrupt relationship, while Judge Porteous avoided criminal
sanction for his similarly corrupt conduct with the Marcottes.
See Ex. 71(a), 3B at 1845-1863; Ex. 71(e), 3C at 1891-1896; Ex.
88(d), 3C at 2112-2115; Ex. 88(f), 3C at 2122-2133; Ex. 88(h),
3C at 2136.
ii. Judge Porteous's perspective
Judge Porteous maintains that his contact with the
Marcottes was minimal after he became a federal judge, which by
Louis Marcotte's own admission amounted to only five to eight
lunches. Accepting those lunches was not barred under the
canons of judicial ethics because he did not use his office as
a federal judge to influence others inappropriately on behalf
of the Marcottes. While Marcotte may have wanted Judge Porteous
to lobby and pressure state court judges to deal with BBU,
there is no evidence that he did anything other than provide a
professional reference for Marcotte, as Judge Porteous did with
Bodenheimer. See Danos, 2A at 805-806; Louis Marcotte, 2A at
490; Ex. 447, 3E at 5029-5030.
Judge Porteous argues that the alleged corrupt conduct in
Article II, then, amounts to a handful of lunches and
contradictory testimony as to whether he abused the power and
prestige of his federal judgeship to lobby other state judges
on behalf of the Marcottes. Rather than providing concrete
evidence of misconduct, Judge Porteous argues that the House
merely attempts to link him with the criminal convictions of
the Marcottes and Bodenheimer, despite the fact that he was
never charged with a crime. In particular, unlike other judges
investigated by the FBI and accused of wrongdoing, Judge
Porteous never asked that the Marcottes provide him with a
percentage of the premium earned from the bonds he signed for
them, nor did he receive improper cash payments from the
Marcottes. See Lori Marcotte, 2A at 568-569; Stip. 163, 1C at
2538.
D. Expert Testimony
1. Professor Charles G. Geyh
In preparing his testimony as an expert witness for the
House, Professor Geyh used the House Report and sworn pretrial
testimony before the Senate\45\ as the basis to form his
opinions.\46\ Geyh, 2A at 716. Geyh stated the applicable
ethical standard at the time was that no judge should accept
any gifts or favors that might reasonably appear designed to
affect his judgment or influence his conduct. He testified
Judge Porteous's alleged relationship with the Marcottes was a
``traditional'' form of corruption tantamount to a quid pro quo
arrangement. Id. at 728. Professor Geyh viewed these
allegations to be an ``abuse [of] the prestige of his office,
this time to favor the Marcottes' interests. . . . And in this
case, Mr. Marcotte . . . thought of Judge Porteous as being on
commission. I mean, these gifts are designed to affect the
judge's conduct.'' Id. Similarly, Professor Geyh viewed the
account of the lunch meeting with new state judges where Judge
Porteous was described as ``bringing strength to the table'' as
a continuing quid pro quo where Judge Porteous traded on the
prestige of his federal office. Id. at 731.
---------------------------------------------------------------------------
\45\Louis and Lori Marcotte gave sworn pretrial deposition
testimony on August 2, 2010. See Ex. 447, 3E at 4926-5070; Ex. 448, 3E
at 5071-5206.
\46\Geyh acknowledged that he did not reject any House assertion as
being untrue. Geyh, 2A at 745.
---------------------------------------------------------------------------
2. Professor Dane Ciolino
As discussed in Article I, Judge Porteous's expert,
Professor Ciolino, testified that a judge could not accept a
gift if it might reasonably appear to affect the judge's
official conduct. For a more complete discussion on this
standard, please refer to Professor Ciolino's testimony in
Article I.
With respect to the allegations of Judge Porteous doing
favors for the Marcottes in return for receiving things of
value, Ciolino also testified that if the allegations regarding
the Judge's actions were true and a quid pro quo relationship
existed, then the behavior would be criminal and unethical.
Ciolino, 2B at 1524. According to Ciolino, an express agreement
is not necessary to establish a quid pro quo relationship. Id.
at 1536. Since the applicable standard weighs the totality of
the circumstances, any change in a fact, such as whether or not
bonds were set too high or too low for the defendant, may
result in a different conclusion. Id. at 1529-1530.
III. ARTICLE III
A. Text of the Article
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.
B. Introduction to the Evidence
Article III addresses Judge Porteous's actions regarding
his Chapter 13 personal bankruptcy and relies heavily on
documentary evidence that is largely uncontested. While there
was also broad agreement among fact and expert witnesses
regarding the process of a Chapter 13 bankruptcy generally and
Judge Porteous's case specifically, a few distinct areas of
sharp disagreement remain. For this reason, the discussion of
Article III is organized differently than the discussions of
Articles I and II, and the House's and Judge Porteous's
perspectives on contested issues are integrated in one separate
section following the statement of facts.
C. Statement of Facts
1. Background
Between 1996 and 2000, Judge Porteous accrued increasing
levels of credit card debt and, by the summer of 2000, was in a
``downward financial spiral.'' Ex. 5, 3B at 434. Judge Porteous
hired Claude Lightfoot, a New Orleans bankruptcy attorney with
10 years of experience, in an attempt to ``workout'' debts
accrued on various unsecured credit cards informally through a
payment financed by an additional mortgage against Judge
Porteous's home. Judge Porteous first pursued this option, as
opposed to filing for bankruptcy, in order to avoid the
embarrassment of seeking bankruptcy protection, about which
Judge Porteous's wife, Carmella, was particularly distraught.
Lightfoot, 2A at 983-984, 1013-1014.
In order to formulate the workout plan, Lightfoot acquired
information about Judge Porteous's assets and liabilities soon
after he was hired. Judge Porteous provided Lightfoot with his
May 2000 pay stub, which listed a net monthly income of
$7,531.52, and a handwritten list of his creditors. In August
2000, Lightfoot asked Judge Porteous to fill out bankruptcy
worksheets, which provided a fuller picture of Judge Porteous's
financial health and listed his assets and creditors.
Additionally, Judge Porteous periodically sent Lightfoot credit
card statements in order to keep these worksheets current. Id.
at 985-988, 1000, 1017-1018; Ex. 138(b), 3C at 2553-2581.
In pursuit of an informal workout, on December 21, 2000,
Lightfoot wrote a letter to each of Judge Porteous's unsecured
credit card creditors, asking them to accept a pro rata share
of money to be borrowed against Judge Porteous's home. Judge
Porteous's total unsecured credit card debt was listed as
$182,330.23 across 13 credit cards, with balances ranging from
$1,724.23 to $28,708.98. This letter twice indicated that Judge
Porteous might be forced to file for bankruptcy. Lightfoot, 2A
at 987; Ex. 5, 3B at 431-432; Ex. 146, 3C at 2752.
Lightfoot attempted to follow up with these creditors for
months but failed to receive a response. At that point,
Lightfoot advised Judge Porteous to stop making payments to his
unsecured creditors in an effort to get their attention, a
tactic that ultimately increased Judge Porteous's level of
indebtedness. In March 2001, when it became clear to Lightfoot
that the workout plan would be unsuccessful, Judge Porteous
decided to file for Chapter 13 bankruptcy protection.
Lightfoot, 2A at 987, 995, 1023-1025.
2. Chapter 13 Bankruptcy Overview
Chapter 13 bankruptcy is often called a wage earner's
bankruptcy. Unlike Chapter 7 bankruptcy, in which the debtor's
current assets are liquidated to pay creditors, Chapter 13
bankruptcy is a voluntary process through which a debtor
commits future disposable income to repay creditors at least
the value they would have received if the debtor had filed for
Chapter 7 protection. Chapter 13 bankruptcy plans cannot move
forward if this equivalency requirement is not met, which is
determined by the ``best-interest-of-creditors'' test. If this
test reveals that the debtor's projected disposable income over
the course of the plan is insufficient to satisfy this
standard, the debtor's current assets may be used in the plan.
Keir, 2A at 1096, 1120; Horner, 2A at 932-933; Hildebrand, 2B
at 1656, 1662; see also 11 U.S.C. Sec. 541(a).\47\
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\47\The Committee accepted the following individuals as expert
witnesses: Bankruptcy Judge Duncan W. Keir of the District of Maryland,
in the area of bankruptcy; Henry Hildebrand, Standing Chapter 13
Trustee for the Middle District of Tennessee, in matters relating to
Chapter 13 bankruptcy cases; Professor Rafael Pardo, Professor of Law
at the University of Washington School of Law, in matters pertaining to
bankruptcy law; and former Bankruptcy Judge Ronald Barliant of the
Northern District of Illinois, in matters pertaining to bankruptcy law.
See Barliant, 2B at 1701-1702; Hildebrand, 2B at 1655; Keir, 2A at
1095; Pardo, 2B at 1261-1262.
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When a Chapter 13 bankruptcy petition is filed, a
bankruptcy estate is automatically created by statute.\48\
Although a debtor continues to own his estate throughout the
Chapter 13 bankruptcy process, a trustee is appointed to
administer it. All property not accounted for in the debtor's
plan when the confirmation order is issued vests back to the
debtor. Keir, 2A at 1117-1118; Pardo, 2B at 1293.
---------------------------------------------------------------------------
\48\Unlike a Chapter 7 estate that, with some exceptions, is
composed only of what the debtor owned when the petition was filed, a
Chapter 13 estate also encompasses the debtor's future income and other
post-petition assets. Some assets, such as individual retirement
accounts, are generally exempt. Pardo, 2B at 1288-1290.
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Creditors are sent a notice of the commencement of the case
after the filing of the petition. This notice contains
identifying information about the debtor, the deadline by which
creditors must file claims against the estate, and the date of
the creditors meeting.\49\ This meeting allows creditors to ask
questions and object to the plan. During this meeting, the
trustee reviews the debtor's bankruptcy filings, which include
a petition, bankruptcy schedules containing information on the
debtor's assets and liabilities, and a statement of financial
affairs. Trustees use this opportunity to evaluate the
sincerity of the debtor through an examination of the debtor
under oath. Hildebrand, 2B at 1674-1675; Lightfoot, 2A at 1004-
1005; Pardo, 2B at 1270-1271.
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\49\Creditors meetings are also referred to as ``341 meetings''
throughout the testimony. This refers to the section of the United
States Code (11 U.S.C. Sec. 341) requiring this meeting of the
creditors.
---------------------------------------------------------------------------
All Chapter 13 plans must be confirmed by a bankruptcy
judge. After the meeting, the trustee makes a recommendation to
the assigned bankruptcy judge as to whether the plan should be
confirmed. If the trustee objects, which is a common
occurrence, the plan is subject to litigation before a
bankruptcy judge at a confirmation hearing. After the
confirmation hearing, the judge rules on the trustee's
objection and decides whether to confirm the debtor's plan.\50\
Beaulieu, 2B at 1400.
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\50\If confirmed, appeals of this order are heard by U.S. District
Court judges or, in a few circuits, U.S. Bankruptcy Court judges
sitting on a bankruptcy appellate panel. In the Eastern District of
Louisiana, appeals are heard by one of the twelve U.S. District Court
judges. Pardo, 2B at 1301-1303.
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Chapter 13 plans can last between three and five years and,
if the plan is completed, the debtor's debts may be
discharged.\51\ The statutory basis for the denial of a
discharge in a Chapter 13 case is failure to complete the plan,
which occurs in more than two-thirds of cases. A plan may also
be converted to a Chapter 7 plan or dismissed if the plan was
not proposed in good faith. If a discharge has been granted, it
may be revoked if the debtor obtained the discharge through
fraud. Lightfoot, 2A at 1065; Pardo, 2B at 1265-1268, 1272,
1313; see also 11 U.S.C. Sec. 1307.
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\51\Nevertheless, neither debt omitted from the debtor's bankruptcy
schedules nor debt accrued post-bankruptcy will be discharged when the
plan is completed. See Pardo, 2B at 1266-1272.
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3. Judge Porteous's Chapter 13 Bankruptcy Filings
On March 28, 2001, Judge Porteous filed for Chapter 13
bankruptcy protection. His petition was filed under the
fictitious name of ``G. T. Ortous'' and used a newly acquired
post office box as his residential address. His filing
accurately listed his Social Security number. Lightfoot
suggested the idea of using the name ``G. T. Ortous'' and a
post office box to avoid any embarrassment that would result
from inclusion of Judge Porteous's bankruptcy filing in the New
Orleans Times-Picayune's weekly listing of local bankruptcies.
Both Lightfoot and Judge Porteous signed the petition under the
following declaration: ``I declare under penalty of perjury
that the information provided in this petition is true and
correct.'' Lightfoot 2A at 991-994, 1027; Stips. 202, 208, 1C
at 2541, 2542; Ex. 125, 3C at 2492-2493; Ex. 138(a), 3C at
2551; Ex. 145, 3C at 2749.
On April 8, 2001, the Times-Picayune printed a list of
local bankruptcies, including Judge Porteous's bankruptcy,
which was filed under the name ``G. T. Ortous.'' Lightfoot
filed an amended petition on the following day using Judge
Porteous's correct name, accompanied by bankruptcy schedules, a
Chapter 13 plan, and a statement of financial affairs to
accompany the amended petition. These documents were prepared
by Lightfoot, based on the information he had previously
received from Judge Porteous. The notice to creditors was not
sent until after Judge Porteous's schedules were filed, and as
a result, no creditor received a notice with the name ``G. T.
Ortous.'' Beaulieu, 2B at 1382; Lightfoot, 2A at 991-995, 1032-
1037; Stips. 189-190, 1C at 2540; Exs. 126-127, 3C at 2497-
2498; Ex. 1064, 3E at 5566-5568.
The bankruptcy schedules filed by Judge Porteous, labeled
``A'' through ``J,'' require that the debtor list real
property; personal property, including assets held in bank
accounts or retirement plans; all creditors holding various
types of secured and unsecured claims; any contracts or leases;
current income; and current expenditures. Judge Porteous signed
this form under the following declaration: ``I declare under
penalty of perjury that I have read the forgoing 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.'' Ex. 127, 3C at 2499-2524.
The statement of financial affairs, filed with a debtor's
bankruptcy schedules, requires the debtor to answer a series of
21 questions to further assess the financial health of the
debtor. Among other things, the statement of financial affairs
asks whether the debtor has made any payments to creditors over
$600 in the 90 days preceding the debtor's bankruptcy filing
(question 3). The statement also requires the debtor to list
any gambling losses incurred in the year immediately preceding
the commencement of the bankruptcy case or since (question 8).
Judge Porteous signed this form under the following
declaration: ``I declare under penalty of perjury that I have
read the answers contained in the foregoing statement of
financial affairs and any attachments hereto and that they are
true and correct.'' Id. at 2499-2524.
Although unknown to the bankruptcy trustee at the time,
Porteous's bankruptcy schedules failed to disclose certain
assets and undervalued others. Judge Porteous's Schedule B, on
which he was required to list any ``checking, savings, or other
financial accounts,'' as well as the value of those assets
(question 2), undervalued his listed Bank One checking account.
Judge Porteous listed this account as having a balance of $100,
despite having deposited $2,000 into this account on March 27,
2001, the day prior to the filing of his original petition.
Moreover, from March 23 through April 23, the account had an
opening balance of $559.07 and a closing balance of $5,493.91.
At no time during this period did Judge Porteous's balance drop
as low as $100. Horner, 2A at 906-907; Stips. 223-224, 226, 1C
at 2543; Ex. 127, 3C at 2499-2524, Ex. 144, 3C at 2732-2748.
Additionally, Judge Porteous failed to list his Fidelity
money market account on this schedule. Judge Porteous used this
account frequently, and in the days shortly prior to filing for
bankruptcy, Judge Porteous wrote numerous checks drawn on the
Fidelity account, including a check for $40 on March 27, 2001.
The value of this account on March 28, 2001, the date on which
Judge Porteous filed his original petition, was $283.42.
However, for several months during Judge Porteous's bankruptcy,
the undisclosed Fidelity money market account carried a balance
significantly higher than in the disclosed Bank One
account.\52\ Horner, 2A at 907, 927-928; Stips. 228, 230, 1C at
2543; Ex. 143, 3C at 2725-2731.
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\52\For example, in May 2002, the account balance in the Fidelity
money market account was $8,760.37, and the account balance in the Bank
One account was $1,120.91. In June 2002, the account balance in the
Fidelity account was over $7,800, and the balance in the Bank One
account was $857.
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Schedule B also requires the debtor to list ``[o]ther
liquidated debts owing debtor[,] including tax refunds.'' In
response to this question, Porteous marked ``none.'' However,
on March 23, 2001, Judge Porteous had filed for a tax refund of
$4,143. This refund was deposited into Judge Porteous's Bank
One checking account on April 13, 2001, four days after the
filing of Judge Porteous's amended petition and bankruptcy
schedules. Horner, 2A at 902; Lightfoot, 2A at 998; Stips. 221-
222, 240, 1C at 2543, 2544; Ex. 127, 3C at 2504; Ex. 141, 3C at
2723-2724; Ex. 144, 3C at 2732-2748.
In addition to the issues described above, Judge Porteous's
bankruptcy schedules did not accurately reflect his net monthly
income. Schedule I requires the debtor to list gross monthly
wages, less payroll deductions, and any other income the debtor
derives from other sources, which provides the trustee with an
accounting of the debtor's total net monthly income. On this
schedule, Judge Porteous listed both his gross wages and net
monthly income as $7,531.52, and his May 2000 pay stub--the
same pay stub used by Lightfoot to calculate the ``workout''
plan in the summer and autumn of 2000--was attached. Ex. 127,
3C at 2516-2517.
Judge Porteous's Schedule I misrepresented his monthly
income in two ways. First, Judge Porteous had received a pay
increase between May 2000 and March 2001.\53\ Second, Judge
Porteous's Schedule I did not account for the fact that Social
Security taxes were withheld from Judge Porteous's salary only
until his income reached a statutorily defined annual gross
salary referred to as the Social Security ``wage base.'' His
income typically reached this level in July of a calendar year.
At that point, certain federal taxes are no longer withheld,
and his net monthly salary increased by several hundred
dollars.\54\ Horner, 2A at 925-926; Stip. 238, 1C at 2544.
---------------------------------------------------------------------------
\53\On the day that his original petition was filed, Judge
Porteous's net monthly income was $7,705.51, about $174 more than the
net monthly income listed on the schedule.
\54\In July 2001 through the end of the year, Judge Porteous's
monthly net salary increased to roughly $8,500, about $1,000 more than
was listed as his net income on his bankruptcy schedules.
---------------------------------------------------------------------------
Finally, Question 8 on the statement of financial affairs
requires the debtor to ``list all losses from fire, theft,
casualty, or other gambling within one year immediately
preceding the commencement of this case or since the
commencement of the case.'' Judge Porteous's listed response
was ``none.'' Although the parties dispute the amount of Judge
Porteous's offsetting gambling winnings, Judge Porteous
incurred at least $12,700 in gambling losses over the previous
year. Horner, 2A at 910, 913; Ex. 127, 3C at 2521.
4. May 9 Creditors Meeting and June 28 Confirmation of the
Chapter 13 Plan
Judge Porteous's Chapter 13 trustee, S.J. Beaulieu, Jr.,
conducted the creditors meeting on May 9, 2001. At this
meeting, Judge Porteous testified under oath that he had listed
all of his assets. During this meeting, neither the trustee nor
any creditor objected to the amount of income listed in Judge
Porteous's bankruptcy schedules. Additionally, a large number
of creditors failed to file claims to collect the money
available through the Chapter 13 plan. Beaulieu, 2B at 1381;
Lightfoot, 2A at 1134.
At the end of the meeting, Beaulieu told Judge Porteous
that he was prohibited from borrowing money or buying anything
on credit while his case was pending. Specifically, Judge
Porteous was informed, ``Any charge cards that you may have . .
. you cannot use any longer. So basically you [sic] on a cash
basis now.'' Any loan or purchase on credit would have to be
approved by Beaulieu. Beaulieu, 2B at 1398; Ex. 130, 3C at
2537; Ex. 135, 3C at 2548.
Beaulieu had mailed Judge Porteous a pamphlet entitled
``Your Rights and Responsibilities in Chapter 13'' prior to the
meeting. This pamphlet explained that while the Chapter 13
process was ongoing, the debtor was prohibited from borrowing
money or buying anything on credit without permission from the
bankruptcy court, including using credit cards or charge
accounts of any kind. The pamphlet additionally stated that
``[t]he Trustee also has the right to use [tax] refunds to fund
your plan.'' While testifying before the Fifth Circuit Special
Investigatory Committee, Judge Porteous indicated that he had
understood that he could not incur more credit in bankruptcy.
Lightfoot, 2A at 1006; Ex. 10, 3B at 728; Ex. 148, 3C at 2754-
2758.
Prior to the creditors meeting, Beaulieu had objected to
Judge Porteous's original plan, indicating that he was not
making use of all available disposable income and had not met
the Chapter 7 equivalency value.\55\ In his objection and
motion to amend the bankruptcy plan, Beaulieu requested that
the bankruptcy court increase the percentage payable to
unsecured creditors. To resolve these issues, a telephone
confirmation hearing was arranged with U.S. Bankruptcy Judge
William R. Greendyke, who was sitting by designation from the
Southern District of Texas.\56\ Beaulieu, 2B at 1378-1379,
1398-1399; Ex. 129, 3C at 2533; Ex. 135, 3C at 2547; see also
Lightfoot, 2A at 1007-1008.
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\55\In particular, Beaulieu objected to an expense relating to the
Porteouses' daughter, who was receiving $300 to $400 a month for her
college food plan and rent. Beaulieu, 2B at 1378, 1530; Lightfoot, 2A
at 1057.
\56\The Fifth Circuit had ordered that the three bankruptcy court
judges in the Eastern District of Louisiana recuse themselves from
Judge Porteous's bankruptcy case; Judge Greendyke was assigned by Judge
Carolyn Dineen King. Ex. 10, 3B at 723.
---------------------------------------------------------------------------
On June 28, 2001, Judge Greendyke confirmed the amended
bankruptcy plan, allowing an increase in Judge Porteous's
monthly payments from $875 per month to $1,600 per month, per
Beaulieu's request, payable to the Chapter 13 trustee for a
period of 36 months. The failure of many creditors to file
claims resulted in each creditor receiving a higher repayment
percentage than proposed by the original plan--in total, 34.5%.
Beaulieu, 2B at 1379, 1398; Lightfoot, 2A at 1058; Ex. 133, 3C
at 2543-2545.
Echoing Beaulieu's admonishment during the May 9 creditors
meeting, paragraph 4 of Judge Greendyke's order expressly
stated: ``The debtor(s) shall not incur additional debt during
the term of this plan without written approval of the Trustee.
Failure to obtain such approval may cause the claim for such
debt to be unallowable and non-dischargeable,'' meaning that
any debt that Judge Porteous incurred after the confirmation
hearing would not discharge upon the completion of the plan.
Judge Porteous received a copy of this order. Lightfoot, 2A at
1008-1009, 1060; Ex. 10, 3B at 728; Ex. 133, 3C at 2443-2445.
Prior to the end of the 36-month period, Judge Porteous
completed the repayment plan but, on the advice of his
attorney, continued to make his monthly payments and distribute
money to his creditors. Upon the completion of the plan, the
bankruptcy court discharged the remainder of Judge Porteous's
scheduled debts in July 2004. In total, Judge Porteous paid
$57,600 to the trustee to fulfill the Chapter 13 plan,
$52,567.01 of which was distributed to Judge Porteous's
unsecured creditors. Compared with most Chapter 13 plans, Judge
Porteous was considered to have completed a large plan. If he
had entered into Chapter 7 bankruptcy, and all of his assets
been accurately listed, the net amount available to creditors
would have been about $33,677, or $18,890 less than Judge
Porteous actually paid out to creditors. See Beaulieu, 2B at
1378; Hildebrand, 2B at 1683; Lightfoot, 2A at 1061, 1063;
Pardo 2B at 1275-1284; Stip. 330, 1C at 2551; Ex. 4, 3B at 379;
Ex. 1100(z), 3E at 5823.
5. Gambling-Related Activity and Extensions of Credit
Throughout this process, Judge Porteous gambled at casinos
in and around New Orleans using markers. Under Louisiana law, a
marker is a check from an individual's bank account, which is
drawn in exchange for casino chips.\57\ Article III of the
Uniform Commercial Code, which has been adopted by the state of
Louisiana, defines a check to be a negotiable instrument in the
form of a ``draft,'' which is payable on demand and drawn on a
bank.\58\ If a marker is not repaid, the casino will negotiate,
or deposit, the marker at the individual's bank for payment
like a normal check. Horner, 2A at 946; Pardo, 2B at 1297.
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\57\Four judges on the Fifth Circuit Judicial Council noted in the
dissent to the certification of misconduct, ``Under Louisiana
commercial law, markers are considered `checks' as defined by Louisiana
statute.'' This statement does not necessarily imply that markers
should be treated as checks rather than loans in the bankruptcy
context, although the definition of markers under Louisiana commercial
law provides ``some support for a good faith understanding that
`markers' would be treated as checks and not credit in the bankruptcy
context within Louisiana and the Fifth Circuit.'' Ex. 6(b), 3B at 510.
\58\Article III, Sec. 3-104(f), of the Uniform Commercial Code
defines a check to be ``(i) a draft, other than a documentary draft,
payable on demand and drawn on a bank or (ii) a cashier's check or
teller's check.'' An instrument may be a check even though it is
described on its face by another term, such as ``money order.''
---------------------------------------------------------------------------
In the 90 days prior to filing for bankruptcy, Porteous
executed, or took out, nine markers worth $5,500.\59\ These
nine markers were executed on two separate occasions. The first
two, totaling $2,000, were executed in February 2001 at the
Grand Casino Gulfport in Gulfport, Mississippi. Judge Porteous
left the casino without first redeeming, or repaying, the
markers. On March 16, the Grand Casino Gulfport deposited these
markers,\60\ which cleared Judge Porteous's account on March
24, 2000. On the day his original bankruptcy petition was
filed, Judge Porteous's balance at the Grand Casino Gulfport
was zero.\61\ The remaining seven markers, totaling $3,500,
were executed at the Treasure Chest Casino. Four of these
markers were redeemed on the same day with chips. Judge
Porteous redeemed the remaining three markers on March 27,
2001, the day before he filed for bankruptcy. Horner, 2A at
890, 896-897; Stip. 193, 1C at 2540.
---------------------------------------------------------------------------
\59\The parties disagree as to whether executing and redeeming
markers constituted preferential payments to creditors that should have
been listed on his statement of financial affairs. This issue is
discussed in the ``Contested Issues'' section.
\60\To cover the markers, Judge Porteous deposited $2,000 into his
Fidelity money market account, $1,960 of which was drawn from his
Fidelity Individual Retirement Account (IRA). Horner, 2A at 896; Stips.
197, 225, 1C at 2541, 2543; Ex. 143, 3C at 2725-2732; Ex. 144, 3C at
2732-2748; Ex. 301(a), 3D at 3732.
\61\Stip. 199, 1C at 2541. These markers, however, were returned as
uncollected on April 3, 2001, due to an invalid account number on the
markers. This occurred because Porteous's bank merged with another
bank, and the routing number and account number were incorrect as a
result. After the markers were returned to the casino on April 3, the
casino contacted Porteous and the error was corrected. On April 4,
2001, Porteous's markers were deposited into the correct account.
Finally, on April 12, the two $1,000 markers cleared Porteous's bank
account. See Horner, 2A at 916; Stips. 198-199, 1C at 2541; Ex. 301(a),
3D at 3732.
---------------------------------------------------------------------------
Judge Porteous also gambled using markers between the date
of his original bankruptcy filing on March 28, 2001 and the
creditors meeting on May 9, 2001. During this time, Judge
Porteous gambled using markers on two separate occasions.\62\
On these two trips, Judge Porteous executed eight markers,
totaling $6,000.\63\ Two markers, totaling $1,000, were later
repaid by a personal check written by Judge Porteous's
secretary, Rhonda Danos. Judge Porteous reimbursed her by
signing over a $1,000 check, drawn from his individual
retirement account.\64\ Danos, 2A at 796; Horner, 2A at 918.
Between the creditors meeting on May 9, 2001 and Judge
Greendyke's confirmation of his Chapter 13 plan on June 28,
2001, Judge Porteous continued to gamble using markers. During
this time, he executed four markers, totaling $2,000.\65\
---------------------------------------------------------------------------
\62\Between April 7 and 8, Porteous executed four markers, totaling
$2,000, at the Beau Rivage Casino in Biloxi, Mississippi. Before
leaving the casino on April 8, Porteous redeemed $1,000 worth of
markers in chips, but left the casino with $1,000 in markers
outstanding. Stips. 247-248, 1C at 2545; Ex. 303, 3D at 3741. On May 7,
2001, Judge Porteous executed four markers at the Treasure Chest Casino
in Kenner, Louisiana. At this casino, Porteous took out four $1,000
markers, which were repaid with cash on the same day. Stips. 258-259,
1C at 2546; Ex. 307, 3D at 3747-3748.
\63\Judge Porteous redeemed six of these eight markers, totaling
$5,000, on the same days they were executed.
\64\On May 4, 2001, Danos's $1,000 check to the Beau Rivage Casino,
written on Judge Porteous's behalf, was paid at the cage and was
credited against Judge Porteous's Beau Rivage account. The Beau Rivage
Casino deposited Danos's $1,000 check on May 5, 2001. Stip. 253, 1C at
2545; Ex. 304, 3D at 3742-3743.
\65\On two separate trips, Judge Porteous executed two markers,
worth $1,000 total, at the Treasure Chest Casino. He redeemed each of
these markers on the same day they were executed. The remaining two
markers, worth $1,000 total, were executed at the Grand Casino Gulfport
on the same trip. Judge Porteous made a $900 payment on these markers,
repaying one marker in full the day it was executed and another in
part; the remaining $100 was repaid on the following day.
---------------------------------------------------------------------------
Finally, Judge Porteous's gambling activities continued in
the year following Judge Greendyke's confirmation of his
Chapter 13 bankruptcy plan. In total, between July 19, 2001,
and July 5, 2002, Judge Porteous gambled with markers on 14
different occasions and executed 42 markers, totaling $33,400,
at 4 different casinos.\66\ Horner, 2A at 922.
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\66\During this time, Judge Porteous gambled at the Treasure Chest
Casino in Kenner, Louisiana, on eight occasions (Stips. 282-302, 1C at
2547-2549; Ex. 312, 3D at 3755; Ex. 313(a), 3D at 3756-3757; Ex. 315-
316, 3D at 3760-3762; Ex. 318-319, 3D at 3764-3766; Ex. 322, 3D at
3769; Ex. 530, 3E at 5247-5250), Harrah's Casino in New Orleans on two
occasions (Stips. 304-306, 1C at 2549; Ex. 314, 3D at 3759; Ex. 320, 3D
at 3767), the Beau Rivage Casino in Biloxi, Mississippi, on one
occasion (Stip. 307, 1C at 2549, Ex. 317, 3D at 3763), and the Grand
Casino Gulfport in Gulfport, Mississippi, on three occasions (Stips.
308-312, 1C at 2549-2550; Ex. 321, 3D at 3768; Ex. 323, 3D at 3770; Ex.
325, 3D at 3772-3774). Of the 42 total markers, Judge Porteous repaid
26 of the 42 markers on the day the marker was originally executed--a
total of $21,500. Many of these payments were made with chips. An
additional six markers, totaling $3,500, were repaid within one day of
their execution. Horner, 2A at 952-954.
---------------------------------------------------------------------------
In order to execute markers at a casino, an individual must
first apply for a line of credit and undergo a credit check.
Throughout the bankruptcy process, Judge Porteous sought to
obtain additional credit at three different casinos. In
particular, Judge Porteous submitted two applications for
increases in existing credit or new credit lines prior to the
May 9, 2001, creditors meeting. On April 6, 2001, less than two
weeks after the original filing of his bankruptcy petition,
Judge Porteous requested a temporary credit limit increase of
$1,500 at the Beau Rivage Casino, bringing his total credit
limit to $4,000 for that particular visit to the casino. On
April 30, Judge Porteous submitted a different credit
application, this time for a new $4,000 credit limit at
Harrah's Casino. Judge Porteous's last application for an
increase in credit occurred on July 4, 2002. On this occasion,
Judge Porteous requested an increase in his credit line at the
Grand Casino Gulfport, from $2,000 to $2,500. See Horner, 2A at
917-919; Pardo, 2B at 1315-1316, 1354-1355; Stips. 230, 245, 1C
at 2543, 2545; Ex. 10, 3B at 791-793; Ex. 149, 3C at 2759; Ex.
303, 3D at 3741; Ex. 324-325, 3D at 3771-3774.
Following the confirmation of his plan, in addition to
applying for extensions of credit at casinos, Judge Porteous
applied for and used a Capital One Visa credit card without the
written approval of the trustee. On August 13, Judge Porteous's
credit card application was approved with a $200 limit. The
first charge on this card, which occurred on August 23, 2001,
was a $49.00 charge toward a security deposit.\67\ In May 2002,
the credit limit on this card was increased to $400 and, six
months later, increased again to $600. Horner, 2A at 920-921;
Stips. 314, 318-319, 323, 1C at 2550, 2551.
---------------------------------------------------------------------------
\67\In his testimony, Horner incorrectly identified the first
purchase made on this credit card as a purchase at Lucy's Restaurant on
September 17, 2001. See Stip. 316, 1C at 2550; Ex. 341(b), 3D at 3921.
---------------------------------------------------------------------------
6. FBI Investigation into Judge Porteous's Bankruptcy
Filings
In late 2001 or early 2002, Special Agent DeWayne Horner
was assigned as the case agent in the FBI's investigation of
Judge Porteous after he was identified as a target in
``Operation Wrinkled Robe.'' Agent Horner, with other FBI and
DOJ personnel, met with Beaulieu on two occasions prior to
completion of Judge Porteous's Chapter 13 repayment plan. In
these meetings, FBI and DOJ personnel discussed Judge
Porteous's bankruptcy filings with Beaulieu, including problems
with Judge Porteous's initial filing, his listed assets, his
use of a new credit card after the confirmation hearing, and
his execution of markers at casinos. Beaulieu, 2B at 1379-1380;
Horner, 2A at 956-959; Stips. 326-327, 1C at 2551.
After his second meeting with Beaulieu, Agent Horner
received a letter from a staff attorney in Beaulieu's office.
The letter, responding to advice from FBI and DOJ personnel
that Beaulieu conduct an investigation into Judge Porteous's
conduct, indicated that because the FBI was unwilling to
provide the trustee with ``any evidence of improprieties by
[Judge Porteous],'' Beaulieu had decided against taking any
action. Beaulieu presented the FBI with the opportunity to
provide him with more information or object to Judge Porteous's
plan before its completion. The FBI did neither.\68\ Beaulieu,
2B at 1381; Horner, 2A at 962-965; Exs. 298-299, 3D at 3728-
3731.
---------------------------------------------------------------------------
\68\Horner testified that the FBI did not provide Beaulieu with
more information because ``the position of the Department of Justice
was that, you know, if you learned something through the questions that
we ask you, you know, you have to take your own steps, that we can't
provide you with evidence and documents and things like that, you have
to ask your own questions, get your own records, and take your own
course of action.'' Horner, 2A at 954-955.
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D. Contested Issues
1. Using a False Name and Post Office Box on the Original
Bankruptcy Petition
The first charge in Article III accuses Judge Porteous of
attempting to defraud the court and his creditors by filing his
original bankruptcy petition using a false name and a recently
acquired post office box. However, Judge Porteous has argued
that he was merely following the advice of counsel and that,
while done knowingly, filing his original petition under a
false name was not done with the intent to defraud creditors.
Rather, the intent was to avoid unwanted publicity. By filing
under a false name, Lightfoot hoped that Judge Porteous would
avoid the publicity that would eventually come from not only
the initial notice in the Times-Picayune, but any investigation
into Judge Porteous's private life that may follow. Lightfoot,
2A at 991-992, 1028-1031, 1036-1037; Stip. 202, 1C at 2541.
Judge Porteous's contention that he did not intend to
defraud the creditors is supported by the fact that, as
discussed above, no creditor received a notice regarding Judge
Porteous's bankruptcy under the false name ``G. T. Ortous.''
Judge Porteous and Lightfoot's plan was always to file an
amended petition immediately after the Times-Picayune listed
Porteous's bankruptcy under the false name. Upon filing an
amended petition, they would also file the bankruptcy schedules
and Chapter 13 plan. Only after these documents were filed
would a notice be sent to creditors. As a result, Lightfoot
knew that no creditor would receive a petition listing a false
name. This differed from most other petitions filed with
inadvertently incorrect names in the Eastern District of
Louisiana, in which the incorrect name is not usually caught
until after the notice is sent to the creditors. See Beaulieu,
2B at 1383-1384; Lightfoot, 2A at 1034.
Furthermore, although Lightfoot ``rue[s] the day'' that he
thought of the idea to file the original petition under a false
name, he asserted that there is nothing inherently wrong with
using a post office box as the address on the bankruptcy
petition. Debtors frequently list post office boxes as their
address for a variety of reasons. Unlike filing under a false
name, Lightfoot had no reservations in advising the Porteouses
to use a post office box in the initial filing. Id. at 1029,
1032-1033.
Finally, Judge Porteous argued that, as a debtor faced with
navigating a complex and highly technical bankruptcy code, he
was entitled to rely on the advice and guidance of his
bankruptcy attorney. Four judges on the Fifth Circuit Judicial
Council issued a dissent from the Fifth Circuit's decision to
certify findings of misconduct to the Judicial Conference of
the United States, in which they stated that ``[g]enerally, a
debtor is entitled to rely on the advice of his bankruptcy
counsel where reliance is reasonable and in good faith.\69\ Id.
at 1028; Ex. 6(b), 3B at 508-509.\70\
---------------------------------------------------------------------------
\69\To support this position, the dissenting opinion cited the
following cases: Hibernia Nat'l Bank v. Perez, 124 B.R. 704, 710-11
(E.D. La. 1991), aff'd 954 F.2d 1026 (5th Cir. 1992); First Beverly
Bank v. Adeeb (In re Adeeb), 787 F.2d 1339 (9th Cir. 1986) (noting that
reasonable and good faith reliance on advice of counsel sufficient to
show debtor lacked requisite fraudulent intent to revoke or deny
discharge); Beckanstein v. United States, 232 F.2d 1, 4 (5th Cir. 1956)
(``The advice of counsel is also important in determining whether
appellant made the statement with a corrupt motive.''). Additionally,
the dissent also noted that, ``according to the Commentary to Canon 5C
of the Code of Conduct for United States Judges, [a] judge has the
rights of an ordinary citizen with respect to financial affairs.'' Ex.
6(b), 3B at 508-509.
\70\The House's argument on this issue additionally relies on
expert testimony, which is discussed in section D.
---------------------------------------------------------------------------
The House argues, in contrast, that even though no creditor
received notice of the bankruptcy petition under the false name
of ``G. T. Ortous,'' Judge Porteous committed perjury and the
defense of ``no harm, no foul'' is unacceptable. Furthermore,
creditors may still have been deceived by the bankruptcy
listing in the newspaper and been deprived of the opportunity
to make a claim or take another action with respect to the
bankruptcy. Judge Porteous's original filing created a false
record with the bankruptcy court in the Eastern District of
Louisiana. If a business wanted to check whether Judge Porteous
had filed for bankruptcy protection between March 28, 2001, and
April 9, 2001, and had contacted the bankruptcy court, it would
have been misled by the false name on the record. Keir, 2A at
1098-1101.
2. Concealing Assets and Income
The second charge in Article III alleges that Judge
Porteous concealed various assets on his bankruptcy schedules
and statement of financial affairs. Both parties agree that
Judge Porteous's bankruptcy filings did not accurately list
assets held by Judge Porteous at the time of his original
bankruptcy filing. The House contends that Judge Porteous
intentionally hid his assets from the bankruptcy trustee and
his own bankruptcy attorney. By failing to list certain
accounts in his bankruptcy schedule and undervaluing others,
Judge Porteous withheld funds that potentially could have been
made available to creditors. Ex. 4, 3B at 382-383. To support
this position, the House presented evidence that Judge Porteous
hid his undisclosed Fidelity money market account from his own
bankruptcy attorney while, at the same time, using the account
to accumulate cash for gambling and other purposes.
Judge Porteous argues that the omission of his Fidelity
money market account was accidental and, despite its absence on
his bankruptcy filings, he ``honestly believe[s]'' that he told
Lightfoot about the Fidelity money market account. Ex. 10, 3B
at 753. From Judge Porteous's perspective, there was no reason
not to tell Lightfoot about this account. Judge Porteous
testified before the Fifth Circuit that, at any given time, the
disclosed Bank One account, into which Judge Porteous's
paychecks were deposited, would have had a higher balance than
the Fidelity account. Furthermore, Judge Porteous presented
evidence that keeping money in his Fidelity accounts after the
plan was confirmed was not improper. After a debtor's petition
is filed, he is not prohibited from keeping money in accounts
not listed on his Schedule B filings. Horner, 2A at 928; Pardo,
2B at 1292; Stip. 230, 1C at 2543; Ex. 10, 3B at 753.\71\
---------------------------------------------------------------------------
\71\This was a practice of Judge Porteous before he filed for
bankruptcy in 2001. From 1997 through his bankruptcy, when Judge
Porteous drew down on his IRA, he would receive funds by check. On
these occasions, he would deposit the funds into a Fidelity money
market account. On many occasions, he used this account to write checks
to casinos to pay gambling debts. See Horner, 2A at 968; Ex. 383, 3D at
442; Ex. 529, 3E at 5241.
---------------------------------------------------------------------------
The House claims that, in addition to concealing his
Fidelity money market account, Judge Porteous also
intentionally undervalued his Bank One checking account. For
example, the House points to a $2,000 deposit to the Bank One
account made by Judge Porteous on March 27, 2001, the day
before he filed his original bankruptcy petition. This suggests
that Judge Porteous must have been aware that his stated
account balance of $100 was incorrect. Horner, 2A at 906-907.
Similar to the omission of the Fidelity money market
account, Judge Porteous argues that the undervaluation of his
Bank One account was unintentional. A few days before the
filing of the bankruptcy schedules, Lightfoot asked Judge
Porteous to approximate the amount of money in his Bank One
checking account. He asked only for an approximation, because
the actual amount in a debtor's checking account at the time of
filing is not as important in a Chapter 13 plan, which commits
future income, as it is in a Chapter 7 plan, in which all
assets are liquidated to pay creditors. Lightfoot did not ask
Judge Porteous this question until immediately before filing
the schedules ``because checks are coming and going all the
time.'' Lightfoot 1138:4-1140:19. Additionally, Judge
Porteous's bankruptcy filings were not signed by him on the
date they were filed. Rather, Lightfoot gave the forms to Judge
Porteous in his chambers, and the Judge then took them home for
his wife to sign. The date on Judge Porteous's bankruptcy
documents reflects the date they were filed, not the date on
which they were signed. Id. at 1050-1052, 1075-1077.
The House also asserts that, beyond his undisclosed
Fidelity money market account and his undervalued Bank One
account, Judge Porteous attempted to conceal his year 2000 tax
refund from the bankruptcy trustee and his creditors. The
presence of a tax refund indicates that there is monthly income
that should possibly be distributed to creditors, and the
debtor's plan may be too low. Although it may or may not be
included in the debtor's Chapter 13 plan, if the trustee does
not know that the debtor is receiving a tax refund, then he
cannot ask the debtor to surrender it. Beaulieu believed that
this tax refund should have been included in Judge Porteous's
bankruptcy schedules. Its inclusion would have enabled Beaulieu
to raise questions as to the amount of disposable income
available to Judge Porteous, especially since it was a large
refund, and would have prompted Beaulieu to perform a closer
examination of Judge Porteous's taxes. Furthermore, the House
presented evidence that the right to receive a refund is an
asset. Judge Porteous's refund, for which he had filed prior to
his original bankruptcy filing, should properly be considered
to be a liquidated sum.\72\ When Judge Porteous failed to list
his expected tax refund, he falsified his schedule. Judge
Porteous discussed his expected year 2000 tax refund with
neither his bankruptcy attorney nor the Chapter 13 bankruptcy
trustee. See Beaulieu, 2B at 1383; Keir, 2A at 1103-1104;
Lightfoot, 2A at 998, 1053.
---------------------------------------------------------------------------
\72\Judge Keir clarified that ``[l]iquidated does not mean
collected; it means quantified.'' Keir, 2A at 1103.
---------------------------------------------------------------------------
Judge Porteous disputes that he was attempting to conceal
his tax refund. Judge Porteous testified before the Fifth
Circuit Special Investigatory Committee that he discussed his
year 2000 return with Lightfoot, who advised him that ``[i]f
the trustee didn't put a lien on it, put it in your account;
but they may . . . ask for it back.'' Ex. 10, 3B at 749-750.
However, Judge Porteous argued that, regardless of whether he
informed others of his pending refund, the trustee was not in
the habit of asking for the debtor's current or future tax
refunds to distribute to creditors. Lightfoot, 2A at 1053; Ex.
6(c), 3B at 526; Ex. 124, 3C at 2469-2470.
Judge Porteous also presented evidence that debtors often
submitted their bankruptcy schedules without listing their tax
refund, and that these debtors are almost always represented by
counsel. If a debtor tells an attorney that he had received a
tax refund, the burden is on the attorney to make sure that the
tax refund was included on the debtor's bankruptcy schedules.
Two witnesses also testified that whether or not the tax refund
was accidentally omitted from Judge Porteous's bankruptcy
schedules, a tax refund from a previous year should not be
included in a debtor's Chapter 13 estate. While a Chapter 13
debtor may liquidate property, ``there can be no requirement
for him to do so.'' Hildebrand, 2B at 1667, 1671; Pardo, 2B at
1288-1290.
In addition to the previously discussed assets, the House
also points to the fact that Judge Porteous's net monthly
income, as listed on his bankruptcy schedules, was inaccurate.
As discussed in the previous section, Judge Porteous's actual
net monthly income was roughly $174 greater than the listed
amount. This income information, which was derived from an
outdated May 2000 pay stub, also failed to disclose that Judge
Porteous reached the Social Security ``wage base'' on or around
July of each calendar year.
Judge Porteous argues, however, that Lightfoot was not
aware that he received a pay increase prior to his bankruptcy
filing, nor was Lightfoot aware of federal tax limits
associated with the Social Security wage base, as Lightfoot's
regular clients never approached this limit. Moreover, Beaulieu
never requested that Judge Porteous update his schedules in any
way, and Judge Porteous was under no obligation to make
additions to the schedules. Generally, debtors are only ordered
to update their schedules to reflect changes in income when the
debtor experienced large fluctuations in his monthly income due
to the nature of his employment. Barliant, 2B at 1715-1716;
Lightfoot, 2A at 1047-1048.
Finally, Judge Porteous presented evidence to demonstrate
that errors and omissions, such as those found in his own
bankruptcy filings, are not uncommon among debtors. To
illustrate this, Judge Porteous presented the findings of an
empirical study of 1,700 Chapter 13 bankruptcy cases filed in
2006. This study found that in 95% of cases examined, the
debtor, a creditor, or both made inaccurate statements in
bankruptcy filings. In a separate study of 200 randomly
selected bankruptcy filings, U.S. Bankruptcy Judge Steven W.
Rhodes of the Eastern District of Michigan, found that 198
(99%) contained at least one error, with an average number of
3.4 errors per case. Thus, an all-or-nothing approach to the
bankruptcy system, where perfect bankruptcy filings are a
prerequisite to any relief, is unworkable, unrealistic, and
would cause the entire bankruptcy system to grind to a
halt.\73\ Pardo, 2B at 1305-1311; Ex. 1068, 3E at 5650; Ex.
1070, 3E at 3737.
---------------------------------------------------------------------------
\73\Hildebrand testified that perfection is not the standard by
which bankruptcy filings are or ought to be judged. Hildebrand, 2B at
1698.
---------------------------------------------------------------------------
Moreover, Judge Porteous argues that, although he served as
a U.S. District Court judge, he was relatively inexperienced in
the area of bankruptcy law. District court judges in the
Eastern District of Louisiana hear few bankruptcy appeals.
Judge Porteous had written only seven bankruptcy opinions in
his career as a federal judge, of which only three dealt with
consumer bankruptcies. Pardo, 2B at 1302. Judge Porteous also
presented evidence that opinions of federal district court
judges in bankruptcy cases were reversed at a much higher rate
than decisions rendered by bankruptcy judges sitting on
bankruptcy appellate panels. Pardo, 2B at 1301-1304.\74\
---------------------------------------------------------------------------
\74\The study also found that circuit courts cited the opinions of
district court judges less frequently than they cited the opinions
rendered by a bankruptcy appellate panel. Both of these findings were
statistically significant. Ex. 1067, 3E at 5571-5572.
---------------------------------------------------------------------------
Finally, Judge Porteous submitted testimony and exhibits
suggesting that he did not fully understand his own finances.
In particular, Judge Porteous indicated that ``he did not fully
understand his financial status and, therefore, never knowingly
misrepresented his bank accounts.'' Judge Porteous also
presented evidence that his wife and secretary normally handled
his personal finances. For example, in a practice that
developed over time, Danos began paying Judge Porteous's bills
as they came in, and she would tell him the amount for which he
needed to reimburse her. Ex. 6(b), 3B at 511; see Danos, 2A at
794-796.
3. Incurring Debt Through the Use of Casino Markers
The third, fourth, and fifth charges in Article III allege
that Judge Porteous concealed preferential payments to
creditors, concealed gambling losses and other gambling debts,
and incurred new debts while his case was pending, in violation
of the bankruptcy court's order. The House argues that Judge
Porteous's habit of gambling at casinos using markers is a
component of each of these offenses.
As discussed in the previous section, Judge Porteous
gambled using markers both before and after his plan was
confirmed. The House recognized that a casino marker is a
three-party instrument called a ``draft,'' which is an order to
pay by the signer or drawer (Judge Porteous) on a drawee (the
bank) to pay the payee or holder (the casino). To support its
position that this activity created debt, however, the House
presented evidence that the marker itself is ``separate and
apart'' from the underlying debt that arises when Judge
Porteous uses the chips procured by executing a marker. As soon
as Judge Porteous made a wager on credit, he had an obligation
to repay the casino for that amount. In other words, ``[w]hen
the casino pushes the markers across the counter to the
gambler, who doesn't immediately pay for them, but will pay for
them, the gambler is now obligated to pay the casino for the
value of the markers. That's when the debt arises.'' Horner, 2A
at 946; Keir, 2A at 1106-1107.
From this perspective, markers, like any other personal
check, do not suspend the individual's underlying obligation to
pay. Rather, the obligation to pay is ``just not
extinguished.'' For example, an individual who pays for
groceries with a check ``technically incurs a debt until the
check is honored by his or her bank.'' Once the check is
honored, however, the drawer's obligation to pay is
extinguished. If the check is not honored, then the holder of
the check may pursue a contract action or a suit on the
instrument. Keir, 2A at 1126-1127.
Judge Porteous, however, introduced evidence that the use
of markers did not generate debt for the purposes of
bankruptcy. In particular, Judge Porteous disagreed with the
House's interpretation that the execution of a draft, such as a
marker or personal check, did not suspend the drawer's
underlying obligation to pay. Judge Porteous presented evidence
that when a payment is made using a check, the drawer is liable
and able to be sued by the check's holder if and only if the
drawee does not honor the check. In other words, contrary to
the evidence presented by the House, the underlying obligation
is suspended until the bank dishonors the check. As a result, a
marker, which is a check and, therefore, an order to pay, is
not a debt instrument. Pardo, 2B at 1263-1264, 1296-1297, 1316-
1317.
Judge Porteous presented additional evidence that the
suspension of the liability is not affected by the amount of
time the casino holds the marker before depositing it. However,
what does result is a contingent liability or contingent debt,
in the sense that the liability is not an actual liability
until the marker is presented at a bank and dishonored. From
this perspective, although any markers outstanding at the time
Judge Porteous's bankruptcy petition was filed should have been
listed on his bankruptcy schedules as contingent debt,
redeeming a marker is not equivalent to using a credit card or
borrowing money. Pardo, 2B at 1281-1283, 1297-1298, 1371-1375.
4. Preferential Payments to Creditors
As mentioned above, the third charge in Article III alleges
that Judge Porteous concealed preferential payments to
creditors in his statement of financial affairs filed with his
amended petition on April 9. The House points in particular to
Judge Porteous's response to question 3 on his statement of
financial affairs, which requires the debtor to list any
payments to creditors exceeding $600 in the 90 days preceding
his bankruptcy filing. Judge Porteous's response was ``normal
installments.'' The phrase ``normal installments'' was meant to
capture regular contractual payments associated with Judge
Porteous's two car leases and two home loans, as Judge Porteous
had stopped paying his unsecured credit card creditors during
the ``workout'' period under advice of counsel. Horner, 2A at
899-900; Lightfoot, 2A at 1001; Ex. 127, 3C at 2499.
As discussed in the previous section, Judge Porteous made
payments over $600 at two casinos in the 90 days prior to his
original bankruptcy filing. Judge Porteous also paid his wife's
Fleet credit card bill in full. To make this payment, Judge
Porteous asked his secretary, Rhonda Danos, to write a personal
check to cover the balance on the Fleet credit card, totaling
$1,088.41. This payment cleared Danos's account on March 29,
2001, and Judge Porteous later reimbursed her for the amount.
Danos, 2A at 789-790, 796; Ex. 329, 3D at 3777.
Based on the House's understanding of markers, the House
argues that Judge Porteous should have reported his payments to
two casinos in the 90 days prior to his original bankruptcy
filing as ``payments to preferential creditors'' on his
statement of financial affairs. However, these payments were
not listed, either as debts outstanding to unsecured creditors
or payments to preferred creditors, on his bankruptcy schedule.
See Beaulieu, 2B at 1393-1394; Hildebrand, 2B at 1693; Horner,
2A at 899-900; Ex. 127, 3C at 2510.
Under Judge Porteous's understanding of markers, however,
his payments to casinos made immediately prior to filing for
bankruptcy do not qualify as ``preferential payments to
creditors'' and, as such, were correctly excluded on his
statement of financial affairs. In order for a payment to be
voidable, or preferential and recoverable by the court, it must
be a payment to the creditor by the debtor for an antecedent,
or existing, debt. However, if markers are not debt
instruments, any obligation Judge Porteous incurred upon
executing a marker was suspended until the casino deposited the
marker against his account.\75\ From this perspective, there
was no antecedent debt. Alternatively, providing payment to a
casino for a marker could be viewed as a way of purchasing back
a marker, which is a negotiable instrument, making it Judge
Porteous's property--not a debt. Pardo, 2B at 1281-1282.
---------------------------------------------------------------------------
\75\Additionally, Judge Porteous presented evidence that the
federal circuits are split as to when, for the purposes of determining
preferential payments to creditors, a debt is deemed to arise. Some
circuits take the view that a debt does not arise ``until . . . the
debtor first becomes legally bound to pay.'' While the casino is still
in possession of the marker, the debtor has no obligation to pay. From
this perspective, the payment would only need to be listed on Judge
Porteous's statement of financial affairs if the casino had attempted
to deposit the marker and the bank refused to honor it. Pardo, 2B at
1280-1283.
---------------------------------------------------------------------------
Moreover, Judge Porteous argues that there is nothing
technically wrong with paying a creditor within 90 days of
filing for bankruptcy; these are legal debts owed to the
creditor that require payment. Before an individual files for
bankruptcy, the principle of equitable distribution does not
apply. Once a debtor files for bankruptcy protection, however,
creditors are entitled to an equitable distribution of the
debtor's assets under his plan. Any recent payments to
creditors are perceived as having a negative effect on the
debtor's ability to equitably repay each creditor. Thus, to
ensure a fair distribution to all creditors, pre-bankruptcy
payments may be recovered. Id. at 1280.
Additionally, Judge Porteous argues that Danos's payment on
the Fleet credit card may not properly be considered a voidable
payment because Danos, who was a third-party, and not Judge
Porteous, made the payment. If Danos paid with her own funds
and was reimbursed by Judge Porteous, he should have listed his
payment to Danos as a preferential payment. However, if Danos's
bank account was merely a conduit, and the bill was paid with
Judge Porteous's money, then the credit card company should
have been listed as a preferential payment to a creditor. Id.
at 1363-1367.
Judge Porteous maintains that, regardless of whether these
payments are voidable, his failure to list these payments on
his statement of financial affairs was immaterial because the
Chapter 13 trustee in the Eastern District of Louisiana
generally did not try to recover preferential payments to
creditors. Beaulieu testified that he would not automatically
attempt to recover preferential payments but, because
recovering voidable payments costs money, he would weigh the
cost of going after the payments to preferred creditors. In
this case, Beaulieu testified that had he known payments to
preferred creditors had been made in Judge Porteous's case, he
would not have attempted to recover the payments because, in
his opinion, the payments were ``inconsequential,'' and were
not payments to an insider. Beaulieu, 2B at 1385, 1402-1403;
Lightfoot, 2A at 1055-1056.
5. Concealing Gambling Losses
The fourth charge in Article III alleges that Judge
Porteous concealed gambling losses and other gambling debts.
The House asserts that, as with his concealment of bank
accounts, Judge Porteous also concealed gambling losses accrued
in the previous year. When asked on his statement of financial
affairs if he had experienced any gambling losses in the
previous year, Judge Porteous indicated ``none.'' However, an
FBI analysis proffered by the House indicated that Judge
Porteous experienced total gross gambling losses of $12,895.35
and gross winnings of $5,312.15, with net gambling losses of
$7,583.20. Although gambling losses are not evaluated as part
of the ``best-interest-of-creditors'' test, the statement of
financial affairs requires the debtor to answer this question
because the answer may prompt the Chapter 13 trustee to ask
particular types of questions in an examination of the debtor.
Horner, 2A at 913-914; Lightfoot, 2A at 1003-1004; Ex. 337, 3D
at 3832-3853; see also Ex. 5, 3B at 428.
Judge Porteous, however, argues that Agent Horner's
analysis of Judge Porteous's gambling losses is not necessarily
accurate. His table was calculated using only Judge Porteous's
winnings and losses when gambling as a ``rated player.'' When
an individual gambles as a rated player, casinos track ``how
much [the gambler] bets, how much he wins, [and] how much he
loses.'' Rated players may earn ``comps'' from the casinos
based on how much they play, in the form of complimentary or
reduced rates on hotel rooms or free meals and drinks. Being a
rated player is also useful for tax purposes. Horner, 2A at
910-911; Ex. 337, 3D at 3832-3853.\76\
---------------------------------------------------------------------------
\76\Horner noted that rated players must fill out a credit
application with the casino in order to open up a line of credit. Rated
players then draw on their line of credit to gamble at the casino.
Horner, 2A at 910-911.
---------------------------------------------------------------------------
Judge Porteous indicated, however, that he did not always
gamble as a ``rated player.'' While Porteous was fairly well
known at the Treasure Chest, he was less well known at casinos
like the Beau Rivage or others on the Gulf Coast. In these
casinos, Judge Porteous may have gambled without being rated,
meaning that Judge Porteous's winnings and losses were not
tracked at these casinos. Thus, Judge Porteous's net gambling
losses may have differed from those indicated by Agent Horner's
analysis. Horner, 2A at 950-952; Ex. 337, 3D at 3832-3853.
Finally, the House argues that Judge Porteous's effort to
intentionally hide his gambling losses is reflected in his
failure to inform his own bankruptcy attorney of his gambling
activities. Lightfoot indicated that Judge Porteous never told
him about his gambling losses, and he did not know that
Porteous gambled at all. Judge Porteous contends that Lightfoot
should have noticed gambling-related charges reflected in two
credit card statements sent to Lightfoot in the summer of 2000.
When questioned about this, however, Lightfoot testified that
he did not realize that the Beau Rivage and the Treasure Chest,
the gambling establishments at which Judge Porteous used his
credit cards, were casinos. Lightfoot, 2A at 1071-1072; Ex.
343, 3D at 3997, 4003.
6. Incurring More Debt in Violation of Judge Greendyke's
Order
The fifth and last charge contained in Article III alleges
that Judge Porteous incurred new debt in violation of Judge
Greendyke's June 28 confirmation order. The House argues that
Judge Porteous violated the order in several ways, including:
gambling using markers; applying for credit at casinos; and
applying for and using a new credit card after the confirmation
of the order. Since gambling with markers necessarily creates
debt, under this view, Judge Porteous's execution of 42 markers
after confirmation of his plan violated Judge Greendyke's
order. Furthermore, the House presented testimony that, the
instant the credit card was used, Judge Porteous had incurred
an obligation to repay. Keir, 2A at 1106-1108.
Judge Porteous argues, however, that executing markers does
not create debt for the purposes of bankruptcy and, therefore,
as a result, gambling with markers did not violate Judge
Greendyke's bankruptcy order. Furthermore, Judge Porteous
presented evidence that, contrary to Judge Greendyke's
confirmation order, there is nothing in the bankruptcy code to
preclude the debtor from borrowing money or making purchases on
credit without the trustee's approval. The bankruptcy code
expressly recognizes that a debtor will incur more debt by
indicating that such debt may not be allowable, meaning not
part of the Chapter 13 case, or dischargeable upon completion
of the plan, with certain exceptions. Barliant, 2B at 1716-
1717; Pardo, 2B at 1294-1295.
Finally, Judge Porteous contends that a literal
interpretation of Judge Greendyke's order would lead to ``an
absurd result,'' because a debtor incurs debt when doing
ordinary tasks, such as going out to eat, getting the oil
changed in his car, and even turning on the lights in his home.
However, the House presented evidence that prohibitions on
incurring debt were common and, while the debtor may choose to
appeal an order, no one has the right to disregard a lawful
order. Barliant, 2B at 1719; Hildebrand, 2B at 1692-1693; Keir,
2A at 1104-1105; Pardo, 2B at 1295-1296.
7. The Materiality of Judge Porteous's Conduct
In all of these charges, the House alleges that Judge
Porteous's conduct harmed the resolution of his bankruptcy
estate. This position is supported by Beaulieu's testimony, in
which he indicated that, given the importance of a debtor
acting in good faith, if he had known about Judge Porteous's
intentional use of a false name, he would have petitioned the
court to dismiss and ``[left] it to the discretion of the judge
and the U.S. trustee to follow up on it if they saw fit.''\77\
Furthermore, if Judge Greendyke had known about the ``preferred
payments, the omitted tax refund, the understated bank account
balances, and the false names on the petition, he would not
have signed the confirmation order and would have sua sponte
objected to confirming a plan on the basis of good faith.''
Beaulieu, 2B at 1383; Ex. 335, 3D at 3823.
---------------------------------------------------------------------------
\77\Beaulieu did not know at the time that the misspelling of
Porteous's name was intentional. Beaulieu testified that Lightfoot
called him and told him that a ``typographical error'' had been made on
the original petition. Beaulieu, 2B at 1377.
---------------------------------------------------------------------------
Judge Porteous argues, however, that even if the Chapter 13
trustee was aware of Judge Porteous's knowing use of a false
name and the errors on his bankruptcy filings, the trustee
still should have granted a discharge of his debts. Lightfoot
testified that, in his experience in the Eastern District of
Louisiana, he had never seen a debtor be held in contempt of
court for incurring post-confirmation debt without court
authority. Lightfoot, 2A at 1060.
Beyond the individual consequences of Judge Porteous's
actions, the House also argues that Judge Porteous's conduct is
detrimental to the viability of the bankruptcy system.
Specifically, the House contends that, in order for the
bankruptcy system to function, a debtor must act in good faith
when filing for bankruptcy. The House argues through his
concealment of assets, preferential payments to creditors,
undisclosed gambling losses and debts, and accrual of new debt
following the confirmation of his plan, Judge Porteous failed
to act in good faith and materially damaged the bankruptcy
system. Given the number of bankruptcy cases active in the
Eastern District of Louisiana at any given time, there is no
opportunity for the trustee to double-check the debtor's
petition, schedules, and statement of financial affairs.
Because of this, the candor and honesty of the debtor is
important; otherwise ``Chapter 13 or Chapter 7 does not work.''
Beaulieu, 2B at 1388.
D. Expert Testimony
1. Advice of Counsel
As discussed above, Judge Porteous argues that he was
entitled to rely on advice of counsel with respect to the use
of a false name on his original bankruptcy petition. Expert
witnesses presented by the House, however, were critical of the
position that Lightfoot's recommendation constituted legal
advice. The Honorable Duncan W. Keir, Chief U.S. Bankruptcy
Judge for the District of Maryland, testified that he knew of
no legal defense of or cure for perjury, which Judge Porteous
committed when he signed his bankruptcy filings under a false
name. Moreover, Judge Keir indicated that advising someone to
knowingly commit a wrongful legal act does not constitute legal
advice and that it may actually be collusion. Keir, 2A at 1099-
1100, 1102.
Professor Charles Gardner Geyh, who was designated as an
expert in judicial ethics, echoed this sentiment. Professor
Geyh testified that Lightfoot's suggestion to commit perjury
cannot be considered advice of counsel in a ``traditional
context,'' let alone in Judge Porteous's bankruptcy case.
Professor Geyh opined that, unlike an undereducated layperson,
Judge Porteous should fully understand what signing his
bankruptcy documents under penalty of perjury means. The advice
of defense counsel, in his opinion, does not obviate the
ethical implications of Judge Porteous, who ``being a lawyer
and a judge, was able to exercise independent legal judgment
[and yet] did not.'' Geyh, 2A at 758-759, 769.
2. Judge Greendyke's Admonishment Against Accruing More
Debt
The parties also disagreed as to the validity of paragraph
4 of Judge Greendyke's order prohibiting Judge Porteous from
accruing additional debt. Ronald Barliant, a former U.S.
Bankruptcy Judge in the Northern District of Illinois,
testified that he considered Judge Greendyke's order to
constitute judicial error. Barliant testified that had he
issued such an order, he would have ``kicked himself for having
entered'' it and vacated the first sentence in paragraph 4
prohibiting the accrual of additional debt. Barring that,
Barliant testified, he would attempt to ``construe the order in
a way that was consistent with the Bankruptcy Code.'' Moreover,
Barliant testified that he would be very reluctant to dismiss a
Chapter 13 case as long as the debtor made timely payments,
even if that debtor had incurred post-petition debt, since
doing so would end plan repayments and not help any of the
interested parties. Barliant, 2B at 1719-1723.
IV. ARTICLE IV
A. Text of the Article
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.
B. Introduction to the Evidence
Article IV focuses on the completeness and accuracy of
Judge Porteous's statements to the FBI and the Senate in
connection with his nomination to the U.S. District Court.
These include his responses to questions in the background
investigation forms, questionnaires, and interviews. As with
Article III, the evidence comprises mostly documents and is
largely uncontested. This discussion begins by providing a
narrative statement of facts, followed by contested issues
identified by the parties.
C. Statement of Facts
In 1994, President William J. Clinton began considering
Judge Porteous for an appointment to the United States District
Court for the Eastern District of Louisiana. Judge Porteous was
required to complete and submit various forms and
questionnaires, including ``Standard Form 86'' (SF-86), which
he completed and signed on or about April 27, 1994. The SF-86
includes numerous background questions and requests personal
and professional references. The form also asks the candidate
about any prior criminal history, use of illegal drugs, or
abuse of alcohol. See Stips. 167-169, 1C at 2538-2539; Ex.
69(b) (full exhibit, at 232-243).
Judge Porteous also filled out and signed a document
entitled ``Supplement to Standard Form 86 (SF-86),
Questionnaire for Sensitive Positions (For National Security)''
(Supplemental SF-86). Stip. 170, 1C at 2539. Among other
topics, the Supplemental SF-86 form inquires into the
candidate's personal finances and interests in business
entities. Ex. 69(b), 3B at 1790-1791. The final question on the
Supplemental SF-86 form asks whether ``there [is] 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?'' Judge Porteous answered,
``No.'' He also signed the document and adopted the following
declaration: ``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.'' Ex. 69(b), 3B at 1791.
Finally, Judge Porteous signed a ``Memorandum for
Prospective Appointees'' issued by the White House, allowing
the FBI to ``investigate [his] background or conduct
appropriate file reviews in connection with the consideration
of [his] application for employment.'' On June 23, 1994, the
FBI received instructions to ``initiate a background
investigation of [Judge Porteous].'' Ex. 69(b) (full exhibit,
at 224-225).
1. FBI Interviews
Starting on or about June 24, 1994, a number of FBI agents
conducted approximately 120 interviews of Judge Porteous's
personal and professional associates as part of his background
investigation. Hamil, 2A at 843; Stip. 176, 1C at 2539; see
generally Ex. 69(b) (full exhibit).\78\ Bobby Hamil, an FBI
agent from 1983 to 2008,\79\ participated in several key
interviews, including two of Judge Porteous. See Hamil, 2A at
814-815. Although he had no independent recollection of his
responsibilities during Judge Porteous's background
investigation, Hamil offered testimony about the general
background investigation interview process and Judge Porteous's
investigation based on contemporaneous notes and summaries he
had prepared in 1994. Id. at 819-821, 844.
---------------------------------------------------------------------------
\78\Early in the investigation, the FBI interviewed staff
assistants of Senator J. Bennett Johnston, Jr., and Senator John Breaux
of the State of Louisiana. Both Senators' aides told the FBI that the
Senators had known Judge Porteous for several years, thought he was
well-qualified to be a federal judge, and had not heard any derogatory
comments about him. Ex. 69(b) (full exhibit, at 278-279).
\79\Hamil conservatively estimated that he had performed 100
interviews relating to FBI background checks over the course of his
career. Hamil, 2A at 843.
---------------------------------------------------------------------------
Prior to a witness interview, an agent would review the
candidate's SF-86, as well as instructions from FBI
headquarters. Id. at 818. When candidates, like other
witnesses, are interviewed, they are not placed under oath nor
are they given the opportunity to review or comment on the FBI
agent's summary write-up of the interview.\80\ Id. at 845-846.
---------------------------------------------------------------------------
\80\The FBI uses a standard form (FD-302) to prepare interview
summaries; these summaries are routinely referred to in the impeachment
proceedings as ``302s.'' See, e.g., Hamil, 2A at 844-845.
---------------------------------------------------------------------------
FBI agents follow a standard interview format that focuses
on the candidate's character, associates, responsibility,
loyalty to the United States, ability, bias or prejudice,
financial responsibility, alcohol abuse, and use of illegal
drugs or abuse of prescription drugs. The last question in a
background interview is the so-called ``compromise or
coercion'' question. This question asks whether there is
anything in the candidate's background that could be used to
coerce or compromise the candidate or might subject the
candidate to undue influence or would impact negatively on his
or her reputation or character. Id. at 816-818, 849-850.
a. Initial interviews
In early July 1994, FBI Agents Charlene Tackett and Bobby
Hamil interviewed Judge Porteous and prepared a summary. Stip.
180, 1C at 2539. They asked Judge Porteous a series of
questions designed to elicit information that might bear upon
his fitness to serve as a federal judge. The agents' summary
states, ``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 [sic], or
discretion.''\81\ Ex. 69(i), 3B at 1831.
---------------------------------------------------------------------------
\81\The FBI interview summary also indicates that ``PORTEOUS said
that he has not abused alcohol or prescription drugs or used illegal
drugs, to include marijuana, during his entire adult life. He has had
no participation in drug or alcohol counseling/rehabilitation programs
since age 18.'' Ex. 69(i), 3B at 1829-1833.
---------------------------------------------------------------------------
Hamil was not surprised that neither Judge Porteous nor any
of the other persons interviewed in the background
investigation answered the compromise-or-coercion question in
the affirmative. Hamil could not recall a single candidate
answering ``Yes'' to that specific question in all of the
background investigation interviews he conducted over the
course of his career; and even in non-candidate interviews, the
answer is ``just about always no.'' See Hamil, 2A at 851, 867-
868; see also Ex. 69(b) (full exhibit).\82\
---------------------------------------------------------------------------
\82\Interviewees occasionally reveal adverse information about a
candidate, but not in response to the question about 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, judgment or discretion. Hamil, 2A at
868-869.
---------------------------------------------------------------------------
The FBI interviewed Louis Marcotte on two occasions during
its background investigation of Judge Porteous. The first
interview occurred on or about August 1, 1994. Stips. 171, 178,
1C at 2539. According to the FBI interview summary, Marcotte
stated that he was a professional and social acquaintance of
Judge Porteous who ``sometimes [went] out to lunch with the
candidate and attorneys in the area.'' Stip. 179, 1C at 2539.
Marcotte also told the FBI that Judge Porteous was ``really
helpful and available for everybody'' and was ``open-minded and
fair, but [was] not a push-over.'' Marcotte generally discussed
bond setting practices in the Jefferson Parish courthouse and
his bail bonds business. Ex. 69(b) (full exhibit, at 471).
In his interview, Marcotte denied knowledge of any use of
illegal drugs or abuse of alcohol or prescription drugs by
Judge Porteous; Marcotte stated that Judge Porteous would have
a beer or two at lunch but Marcotte had never seen him drunk.
Marcotte also told the FBI that he had ``no knowledge of the
candidate's financial situation'' and assured the FBI 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 that would impact negatively on the
candidate's character, reputation, judgment, or discretion.''
Ex. 69(b) (full exhibit, at 471). As discussed above in the
context of Article II, Marcotte testified in the evidentiary
hearings that he lied to the FBI during this interview about
Judge Porteous's financial circumstances, his alcohol usage,
and in response to the general ``integrity'' questions.
Marcotte stated that he understood at the time he was
interviewed that his relationship with Judge Porteous was
improper and that he lied to protect the lifetime federal
appointment of Judge Porteous, who had been good to him, and
himself. Louis Marcotte, 2A at 481-486.
The FBI also interviewed Robert Creely on or about August
1, 1994. The FBI summary of Creely's interview states that
Creely told the FBI that he had ``never known the candidate to
use illegal drugs or abuse alcohol or prescription drugs'' and
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 that would impact
negatively on the candidate's character, reputation, judgment,
or discretion.'' Ex. 69(b) (full exhibit, 476-477). At the
evidentiary hearing, Creely testified that he misled the FBI in
this interview about Judge Porteous's finances because he
``didn't want to hurt the man and hurt his appointment.''
Creely, 2A at 282-283.
On August 8, 1994, the FBI interviewed an individual who
asked that his/her identity remain anonymous.\83\ This
confidential source (referred to in the interview summary as T-
6) made a number of allegations regarding Judge Porteous. This
source alleged that Judge Porteous received things of value
from Louis Marcotte in return for signing bonds ahead of time
and reduced bonds in exchange for money. Ex. 69(b) (full
exhibit, at 524, 526).
---------------------------------------------------------------------------
\83\The Committee requested that the Department of Justice and the
FBI provide unredacted versions of this and other FBI interview
summaries. The Department declined to disclose information about the
identity of a number of its confidential sources.
---------------------------------------------------------------------------
b. Follow-up interviews
After the FBI Headquarters in Washington, D.C., received
the results of the initial background investigation, it
instructed the FBI field office in New Orleans to conduct an
additional investigation. On August 12, 1994, FBI Headquarters
sent a teletype to the New Orleans field office directing
additional interviews ``to verify and corroborate'' information
provided by a confidential source. Ex. 69(b) (full exhibit, at
478-479); Hamil, 2A at 831-832. In particular, FBI Headquarters
ordered the field agents to seek additional information
concerning Judge Porteous's bond-setting practices. FBI agents
were also instructed to ask Louis Marcotte whether he was aware
of any ``exchange of money with Judge Porteous and others to
get a bond reduction'' for a specific individual. The agents
were further instructed to re-interview Judge Porteous and to
give him an opportunity to address these allegations. See Ex.
69(b) (full exhibit, at 462-463, 478-480).
Pursuant to the teletype, FBI agents interviewed Adam
Barnett, another bail bondsman in Gretna, Louisiana, on August
17, 1994. Barnett stated that he did not know of any
questionable conduct or acts by Judge Porteous, financial
problems experienced by Judge Porteous, or personal problems or
habits that would bar Judge Porteous from service as a federal
judge; he went on to recommend Judge Porteous for the federal
bench. Stip. 175, 1C at 2539.
On or about August 17, 1994, Louis Marcotte was re-
interviewed by the FBI. According to the FBI summary, Marcotte
was ``confronted with questions and information about his
knowledge and relationship'' of specific bond matters. Hamil,
2A at 833; Stip. 172, 1C at 2539. Marcotte ``totally den[ied] .
. . arranging for a portion of the bond reduction fee to go
directly to Judge Porteous as a `kickback.''' Ex. 69(b) (full
exhibit, at 513-514).
On or about August 18, 1994, Judge Porteous was interviewed
by the FBI for the second time. Hamil, 2A at 836; Stip. 173, 1C
at 2539. Agent Hamil interviewed Judge Porteous regarding the
allegations of misconduct regarding bond-setting practices.\84\
Judge Porteous was asked about allegations that he had received
monies from an attorney and a bail bondsman to reduce bonds; he
was also questioned about his reduction of an unrelated bond,
for which Adam Barnett was the bondsman. Judge Porteous denied
these allegations and the allegations raised by FBI
confidential source T-6. According to the FBI interview
summary, Judge Porteous ``denied that he had ever signed any
bail bonds `in blank' and reiterated 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, judgment, or
discretion.'' See Hamil, 2A at 837-839; Ex. 69(b), 3B at 1797-
1798; Ex. 69(k), 3B at 1835.\85\
---------------------------------------------------------------------------
\84\According to Hamil, after receiving instructions from FBI
Headquarters to re-interview Judge Porteous but before he had contacted
Judge Porteous to set up a second interview, Judge Porteous called him
to discuss allegations of improper bond setting. Apparently, the FBI
had raised these allegations in its interview of Jolene Acy, Judge
Porteous's civil court clerk, and she had apprised Judge Porteous.
Hamil stated that he considered Judge Porteous's unsolicited call to
discuss such allegations to be ``out of the ordinary'' for a candidate.
Hamil, 2A at 833-835; see Ex. 69(b), 3B at 1795.
\85\Hamil did not ask Judge Porteous about lunches with Louis
Marcotte, curatorships, or gifts received from Robert Creely or Jacob
Amato. See Hamil, 2A at 846; Exs. 69(i), 3B at 1829-1833; 69(k), 3B at
1835.
---------------------------------------------------------------------------
Once the FBI field agents completed the background
investigation, the results were sent to FBI Headquarters for
transmittal to the Department of Justice. On August 19, 1994,
the FBI sent a background note to the Department of Justice,
summarizing the FBI's findings (including the allegations made
by the confidential source identified as T-6) and stating it
had completed the investigation. Hamil, 2A at 862-863; Ex.
69(b) (full exhibit, at 530).
2. Nomination and Senate Confirmation
On August 25, 1994, President Clinton nominated Judge
Porteous to be a United States District Court Judge for the
Eastern District of Louisiana. During the Senate confirmation
process, Judge Porteous completed a United States Senate
Judiciary Committee ``Questionnaire for Judicial Nominees''
(Senate Judiciary Questionnaire). Ex. 9(a), 3B at 602-604;
Stips. 12, 182, 1C at 2526, 2539.
When asked on the Senate Judiciary Questionnaire whether
there was ``any unfavorable information that may affect your
nomination,'' Judge Porteous answered, ``To the best of my
knowledge, I do not know of any unfavorable information that
may affect my nomination.'' Judge Porteous adopted the
affidavit at the end of the Senate Judiciary Questionnaire,
which stated: ``I, Gabriel Thomas Porteous, Jr., do swear that
the information provided in this statement is, to the best of
my knowledge, true and accurate.'' The Senate Judiciary
Questionnaire was signed by Judge Porteous and notarized. Stip.
174, 1C at 2539; Ex. 9(f), 3B at 696-697.
Upon receiving Judge Porteous's nomination, Senate
Judiciary Committee staff was given access to his FBI
background investigation file. One staff member took notes on
this file, which included the following allegations: that Judge
Porteous ``took kick-backs'' in relation to Louis Marcotte,
that he was living beyond his means and questioned whether he
might be involved in some type of criminal activity, that he
had a drinking problem, and that he gambled on occasion. The
Judiciary Committee staff also placed additional telephone
calls to Robert Creely, Donald Gardner, and Louis Marcotte,
among others. Ex. 439(q) (full exhibit)\86\; see also Stip.
184, 1C at 2540.
---------------------------------------------------------------------------
\86\Like Exhibit 69(b), the Exhibit 439 series is also omitted from
the public record, but available to Senators upon request.
---------------------------------------------------------------------------
Judge Porteous's confirmation hearing before the Senate
Judiciary Committee was held on October 6, 1994; he was
confirmed by the Senate on the following day. Judge Porteous
received his judicial commission on October 11, 1994, and was
sworn in on October 28, 1994. Stips. 13-16, 1C at 2527; Ex.
9(c), 3B at 655-656.
D. Contested Issues
The parties offer sharply different views about whether
Judge Porteous misled or withheld information from the FBI or
the Senate during his background investigation. The core
factual disagreement is whether, as the House argues, Judge
Porteous lied to and withheld relevant information from the FBI
in response to certain questions about his background or
whether, as Judge Porteous contends, his answers were realistic
responses to flawed and ambiguous ``catchall'' questions.
1. The House's Perspective
The House maintains that several of Judge Porteous's
answers in response to the background investigation and Senate
confirmation questions were false and made with the intent to
deceive in order to obtain a judicial appointment without
disclosing material information that would have adversely
affected his nomination. The House identifies four separate
occasions in which Judge Porteous allegedly lied prior to his
confirmation: once on the White House Supplemental SF-86, twice
during FBI interviews, and once to the Senate on the Judiciary
Committee Questionnaire. According to the House, Judge Porteous
withheld information during the background investigation and
confirmation process about his ongoing corrupt relationships,
namely, the ``curatorship scheme'' with Creely and the firm of
Amato & Creely, and his corrupt relationship with Louis and
Lori Marcotte. See Ex. 69(b), 3B at 1791, 1796-1798; Ex. 69(i),
3B at 1829-1833; Ex. 9(f), 3B 662-697.
2. Judge Porteous's Perspective
Judge Porteous denies that he withheld information from, or
otherwise lied to, the FBI or the Senate during his
confirmation. Judge Porteous faults the broad ``catchall''
questions on the Supplemental SF-86, the FBI interviews, and
the Senate Judiciary Committee Questionnaire as overly vague
and ambiguous. To the extent that he admits receiving lunches
and gifts from friends who were attorneys and bail bondsmen, he
argues that there is no evidence that he believed such conduct
to be a basis for coercion, blackmail, public embarrassment, or
unfavorable to his nomination. In fact, he notes that the
lunches with Creely, Amato, and the Marcottes all occurred in
public places because he had nothing to hide. He insists that
the House has presented no evidence that he concealed
unfavorable or embarrassing information from the White House,
the FBI, or the Senate.
Judge Porteous also dismisses the notion that he misled the
FBI in light of the information of alleged misconduct gathered
by the FBI and made available to the Senate. He cites as
evidence the FBI summaries of Louis Marcotte's interview about
his occasional lunches and professional relationship with Judge
Porteous. Hamil, 2A at 847-848, 856-857. These summaries were
made available to the Senate Judiciary Committee. See Ex. 69(b)
(full exhibit, at 471, 526); Ex. 439(q). Judge Porteous also
cites Marcotte's testimony that Marcotte never thought he would
extort or embarrass Judge Porteous as leverage. Ex. 447, 3E at
5052-5053. In Judge Porteous's view, this admission only
confirms that he responded truthfully to the compromise-or-
coercion, public embarrassment, and unfavorable information
questions in the Supplemental SF-86, the FBI interviews, and
the Senate Judiciary Committee Questionnaire.
D. Expert Testimony
The parties offered two experts who addressed the
allegations in Article IV. The House called Professor Charles
Geyh of the Indiana University--Bloomington Maurer School of
Law as an expert in judicial ethics. Judge Porteous offered
Professor G. Calvin Mackenzie of Colby College as an expert in
presidential appointments, the appointments process, and
governmental ethics. The Committee accepted both professors as
experts in their designated areas. See Geyh, 2A at 714-716;
Mackenzie, 2B at 1807.
1. Professor Charles G. Geyh
Professor Geyh was asked a number of questions regarding
the discipline of a judicial officer for misleading or
providing false information to the Senate Judiciary Committee.
When asked about his expert opinion on Judge Porteous's alleged
conduct during the federal nomination and Senate confirmation
process, he opined that if Judge Porteous had made false
statements under oath it would reflect adversely on his
integrity. Although he acknowledged that the statements in the
confirmation process are ``a trickier question'' because the
standard compromise-or-coercion question has ``weasel room,''
the serious allegations regarding the curatorships, the bail
bonds, and other quid pro quo schemes, if true, are subjects
that would affect any nominee in Judge Porteous's position and
possibly make him vulnerable to blackmail. Therefore, in this
circumstance, answering ``no'' to the compromise-or-coercion
question in his background investigation would ``qualify as
perjury.'' See Geyh, 2A at 734-736.
On cross-examination, Professor Geyh was asked about
several instances in which a candidate for presidential
appointment was alleged to have made false statements to the
Senate Judiciary Committee. When asked about one case in which
a judge provided allegedly inconsistent testimony and
submissions to the Senate, Professor Geyh agreed that the
intent of the judge is a relevant factor when considering
discipline of a judge who provided inconsistent or false
information to the Senate Judiciary Committee. Professor Geyh
also emphasized that there is important ``context to all
cases.'' See id. at 757-758,760-761.
2. Professor G. Calvin Mackenzie
Professor Mackenzie testified that the process of FBI
background checks began in the Eisenhower administration and
was directed at uncovering national security risks. Mackenzie
explained that the decision to nominate an individual for a
presidential appointment requiring Senate approval begins an
elaborate process involving numerous forms and document
productions. Mackenzie, 2B at 1807-1809. Professor Mackenzie
stated that the average nominee has to answer approximately 200
written questions during the nomination process and that many
of these questions are redundant. Id. at 1826-1827. He also
stated that there is evidence that ``these background checks
are not very useful to most people in the process'' because of
the accumulation of unverified information in background
files.''\87\ Id. at 1810.
---------------------------------------------------------------------------
\87\On cross-examination, Professor Mackenzie agreed that the forms
and questionnaires include many valid questions (such as the
compromise-or-coercion question) that are important safeguards for
high-level federal appointments; he only advocated eliminating some of
the redundancy in the forms and questionnaires. Id. at 1855-1857.
---------------------------------------------------------------------------
Professor Mackenzie opined that many candidates find
answering numerous specific and intrusive questions about their
professional and personal lives to be quite burdensome and that
when asked a broad ``catchall'' question (such as the
compromise-or-coercion question) at the end of the form or
interview, most candidates consider the question to be
redundant and answer ``No.'' When asked if he personally knew
of any candidate who had answered the compromise-or-coercion
question affirmatively, he responded, ``No, I don't, but I
suspect [any such candidates] wouldn't have completed the
process if they added something different to that question.''
See id. at 1811-1814.
Regarding the question on Supplemental SF-86 that seeks
information that was potentially embarrassing or could be used
for coercion or blackmail, Professor Mackenzie testified that
the question is ``ambiguous'' and ``very difficult to apply.''
He further noted that ``history is replete with examples of
people who have answered no to this question, gone into the
confirmation process or sometimes even gone through
successfully the confirmation process, only to have information
come out later which was embarrassing to them, sometimes
embarrassing to the President.'' Professor Mackenzie also
testified that while the compromise-or-coercion question is
asked ``routinely'' of ``virtually everybody who is
interviewed,'' he could not recall any candidate who had ever
responded affirmatively to this question. Id. at 1811-1814. Nor
was he aware of any individual who has ever responded
affirmatively to a question that asks the candidate to ``advise
the Committee of any unfavorable information that may affect
your nomination'' or any nominee who had ever been prosecuted
or removed from office for falsely answering such a question.
See id. at 1835.
Professor Mackenzie clarified that candidates have no right
to lie in response to ``catchall questions'' on the
Supplemental SF-86 or the Senate Judiciary Questionnaire, and
if the nominee were to give false answers, that would be a
problem. Id. at 1890. He agreed that the disclosure that a
candidate had taken kickbacks from attorneys as a state court
judge, as well as receiving gifts from and performing favors
for bail bondsmen, would unfavorably affect, and likely kill,
any federal appointment. See id. at 1863-1867. He also
acknowledged that the catchall question serves the purpose of
preventing a candidate from hiding and rationalizing
unfavorable facts during the background investigation as long
as no question specifically asked about that fact. Id. at 1885-
1886. For these reasons, he was ``not opposed to the catchall
questions.'' See id. at 1860-1862, 1887.
* * * * *
COMMITTEE ROLLCALL VOTE
In compliance with paragraph 7(b) and (c) of rule XXVI of
the Standing Rules of the Senate, the record of the rollcall
vote of the Impeachment Trial Committee on the Articles Against
Judge G. Thomas Porteous, Jr., to issue this report to the
Senate was as follows:
YEAS NAYS
Mrs. McCaskill
Mr. Hatch
Ms. Klobuchar
Mr. Whitehouse
Mr. Udall
Ms. Shaheen
Mr. DeMint
Mr. Barrasso
Mr. Wicker
Mr. Johanns
Mr. Risch (by proxy)
ADDENDUM A
Rule XI of the Rules of Procedure and Practice in the Senate When
Sitting on Impeachment Trials\88\
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\88\Procedure and Guidelines for Impeachment Trials in the United
States Senate, 99th Cong., 2nd Sess., Doc. 99-33, at 4 (August 15,
1986).
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That in the trial of any impeachment the Presiding Officer
of the Senate, if the Senate so orders, shall appoint a
committee of Senators to receive evidence and take testimony at
such times and places as the committee may determine, and for
such purpose the committee so appointed and the chairman
thereof, to be elected by the committee, shall (unless
otherwise ordered by the Senate) exercise all the powers and
functions conferred upon the Senate and the Presiding Officer
of the Senate, respectively, under the rules of procedure and
practice in the Senate when sitting on impeachment trials.
Unless otherwise ordered by the Senate, the rules of
procedure and practice in the Senate when sitting on
impeachment trials shall govern the procedure and practice of
the committee so appointed. The committee so appointed shall
report to the Senate in writing a certified copy of the
transcript of the proceedings and testimony had and given
before such committee, and such report shall be received by the
Senate and the evidence so received and the testimony so taken
shall be considered to all intents and purposes, subject to the
right of the Senate to determine competency, relevancy, and
materiality, as having been received and taken before the
Senate, but nothing herein shall prevent the Senate from
sending for any witness and hearing his testimony in open
Senate, or by order of the Senate having the entire trial in
open Senate.
ADDENDUM B
111th Congress, 2d Session
S. RES. 458
To provide for the appointment of a committee to receive
and to report evidence with respect to articles of impeachment
against Judge G. Thomas Porteous, Jr.
IN THE SENATE OF THE UNITED STATES, MARCH 17, 2010
Mr. Reid (for himself and Mr. McConnell) submitted the
following resolution; which was considered and agreed to
RESOLUTION
To provide for the appointment of a committee to receive
and to report evidence with respect to articles of impeachment
against Judge G. Thomas Porteous, Jr.
Resolved, That pursuant to Rule XI of the Rules of Procedure
and Practice in the Senate When Sitting on Impeachment Trials,
the Presiding Officer shall appoint a committee of twelve
senators to perform the duties and to exercise the powers
provided for in the rule.
Sec. 2. The majority and minority leader shall each
recommend six members, including a chairman and vice chairman,
respectively, to the Presiding Officer for appointment to the
committee.
Sec. 3. The committee shall be deemed to be a standing
committee of the Senate for the purpose of reporting to the
Senate resolutions for the criminal or civil enforcement of the
committee's subpoenas or orders, and for the purpose of
printing reports, hearings, and other documents for submission
to the Senate under Rule XI.
Sec. 4. During proceedings conducted under Rule XI the
chairman of the committee is authorized to waive the
requirement under the Rules of Procedure and Practice in the
Senate When Sitting on Impeachment Trials that questions by a
Senator to a witness, a manager, or counsel shall be reduced to
writing and put by the Presiding Officer.
Sec. 5. In addition to a certified copy of the transcript of
the proceedings and testimony had and given before it, the
committee is authorized to report to the Senate a statement of
facts that are uncontested and a summary, with appropriate
references to the record, of evidence that the parties have
introduced on contested issues of fact.
Sec. 6. (a) The actual and necessary expenses of the
committee, including the employment of staff at an annual rate
of pay, and the employment of consultants with prior approval
of the Committee on Rules and Administration at a rate not to
exceed the maximum daily rate for a standing committee of the
Senate, shall be paid from the contingent fund of the Senate
from the appropriation account ``Miscellaneous Items'' upon
vouchers approved by the chairman of the committee, except that
no voucher shall be required to pay the salary of any employee
who is compensated at an annual rate of pay.
(b) In carrying out its powers, duties, and functions under
this resolution, the committee is authorized, in its discretion
and with the prior consent of the Government department or
agency concerned and the Committee on Rules and Administration,
to use on a reimbursable, or nonreimbursable, basis the
services of personnel of any such department or agency.
Sec. 7. The committee appointed pursuant to section one of
this resolution shall terminate no later than 60 days after the
pronouncement of judgment by the Senate on the articles of
impeachment.
Sec. 8. The Secretary shall notify the House of
Representatives and counsel for Judge G. Thomas Porteous, Jr.
of this resolution.
ADDENDUM C
Description of Committee Proceedings
This Addendum offers a brief overview of the Committee's
proceedings, which are documented by the certified record. The
Committee's proceedings are best understood in two phases: the
pre-trial matters and the evidentiary hearings.
Pre-Trial Matters
The pre-trial phase of the Committee's work occurred from
March 17 to September 13, 2010, during which the Committee
addressed discovery issues, pre-trial evidentiary disputes,
witness subpoena and immunity requests, stipulations, and other
procedural matters. In addition to document discovery, the
Committee authorized the pre-trial deposition of four principal
witnesses upon Judge Porteous's request: Jacob Amato, Robert
Creely, Louis Marcotte, and Lori Marcotte.\89\ 1A at 296-298.
The correspondence, filings and motions, and Committee orders
on these pre-trial matters are found in Part 1 of the certified
record. Three pre-trial matters deserve to be highlighted.
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\89\Judge Porteous requested a total of ten depositions.
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First, in June 2010, the Committee disqualified one of
Judge Porteous's counsel because of a serious conflict of
interest based on his concurrent representation of two of the
most important witnesses, Louis and Lori Marcotte, in a
pending, related civil proceeding. 1A at 625-632. The Committee
continued its scheduled hearings by six weeks to account for
the substitution of additional counsel. The filings and the
Committee's order addressing this conflict of interest are
found in Part 1A.
Second, on August 4, 2010, the Committee held a hearing on
three issues raised in the parties' pre-trial motions: Judge
Porteous's motion to dismiss based on the asserted
unconstitutional aggregation of conduct in the articles of
impeachment, the parties' cross-motions on the use of Judge
Porteous's prior immunized testimony before the Fifth Circuit
Special Investigatory Committee, and the parties' cross-motions
on the admissibility of other prior witness testimony from the
Fifth Circuit judicial disciplinary hearings and the House
impeachment proceedings. The Committee declined to hear pre-
trial arguments on Judge Porteous's four motions to dismiss the
individual articles of impeachment because the motions relied
on and cited to evidence that had not yet been received by the
Committee. After deliberations and votes on the remaining
motions, the Committee issued an order on August 25, 2010,
denying Judge Porteous's motion to dismiss based on the
aggregation of conduct, permitting use of Judge Porteous's
immunized testimony from the Fifth Circuit, and deeming
admissible some other witness testimony from the Fifth Circuit
and the House impeachment proceedings, namely, the prior
testimony of fact witnesses who had been the subject of cross-
examination. 1B at 1967-1973. The Committee denied the House's
motion to compel Judge Porteous to testify. The order, related
filings, and transcript from the pre-trial motions hearing are
found in Part 1B.
Third, the Committee engaged in prolonged discussions, on
behalf of Judge Porteous, with the Department of Justice
regarding discovery requests for documents within the
possession of the Department. 1C at 1999-2000. As a result, the
Department made a number of productions from its investigation
of Judge Porteous in late August and September 2010. The
filings and correspondence regarding the discovery to the
Department are found in Part 1C.
The Evidentiary Hearings
The evidentiary hearings of the Committee took place over
five days, on September 13, 14, 15, 16, and 21, 2010.
The Committee subpoenaed all fact witnesses requested by
the parties with two exceptions. Judge Porteous requested
subpoenas for two attorneys with the Department of Justice,
Criminal Division, who were involved in the investigation of
Judge Porteous. The House requested a subpoena to compel Judge
Porteous's testimony. For both of these matters, the subpoena
requests were considered and denied by the full Committee. The
Committee declined to subpoena the parties' proffered expert
witnesses, but permitted selected expert testimony to be
introduced. The Committee paid for the travel expenses of all
subpoenaed witnesses. 1A at 553.
Each party was allotted twenty hours to present its case.
The House called 14 witnesses; Judge Porteous called 12
witnesses. Each witness was subject to examination by counsel
for the parties and, in some cases, by the members of the
Committee. Neither side was denied the opportunity to call a
witness based on insufficient time. 1C at 2581-2582.
The Committee also admitted exhibits during the evidentiary
hearings and additional exhibits in consultation with the
parties following the hearings to complete the record. 3A at
342-363. The Committee declined to include in the certified
record two admitted exhibits in their entirety: Exhibit 69(b),
which is the FBI's background investigation file for Judge
Porteous's federal appointment, and Exhibit 439, which is the
Senate Judiciary Committee's nomination file of Judge Porteous.
These exhibits, however, will be available to Senators only
upon request for review. The transcripts of the evidentiary
hearings are found in Parts 2A and 2B, and the admitted
exhibits are contained in Parts 3B, 3C, 3D, and 3E.
After the evidentiary hearings, the Committee requested
from the parties proposed findings of fact and post-trial
briefs on the factual and legal issues. The proposed findings
of fact are found in Part 3A. The post-trial briefs will be
provided separately to each Senator along with this report and
the certified record.
ADDENDUM D
Glossary of Names Appearing in the Committee Report
1. Amato, Jacob J., Jr.--Attorney with longstanding
friendship with Judge Porteous, who was retained as counsel for
Liljeberg in the Lifemark v. Liljeberg case that is the subject
of Article I. Former law partner of Judge Porteous and of
Robert Creely.
2. Barliant, Ronald--Former U.S. Bankruptcy Judge for the
Northern District of Illinois, called by Judge Porteous as an
expert witness on bankruptcy law.
3. Barnett, Adam--Bail bondsman in Gretna, Louisiana, who
worked with the Marcottes and Judge Porteous.
4. Beaulieu, S.J., Jr.--Chapter 13 Bankruptcy Trustee for
the Eastern District of Louisiana who oversaw Judge Porteous's
personal bankruptcy.
5. Bodenheimer, Ronald--Former state court judge of the
24th Judicial District Court, first elected in 1999, who pled
guilty to corruption in ``Operation Wrinkled Robe.''
6. Ciolino, Dane--Professor at Loyola University School of
Law called by Judge Porteous as an expert witness on judicial
ethics and standards, as well as practices in the 24th Judicial
District Court.
7. Creely, Robert--Attorney with longstanding friendship
with Judge Porteous and partner of Jacob Amato.
8. Danos, Rhonda--Judge Porteous's secretary during his
time as both a state court judge and a federal district court
judge.
9. Duhon, Jeffrey--Former Employee of Bail Bonds Unlimited.
10. Gardner, Donald--Attorney with longstanding friendship
with Judge Porteous, who was retained by Lifemark in the
Lifemark v. Liljeberg case that is the subject of Article I.
11. Geyh, Charles G.--Professor at Indiana University
School of Law who was called as an expert witness by the House
on judicial ethics.
12. Goyeneche, Raphael--President of the Metropolitan Crime
Commission, a non-profit community organization to report crime
and corruption in New Orleans, LA.
13. Greendyke, William R.--Former judge of the U.S.
Bankruptcy Court for the Southern District of Texas who
presided over Judge Porteous's personal bankruptcy from 2001
through 2004.
14. Griffin, Darcy--Criminal minute clerk for Judge
Porteous between 1992 and 1994 on the 24th JDC.
15. Hamil, Bobby P., Jr.--Former FBI Agent who was involved
in the background investigation of Judge Porteous for his
federal judicial nomination.
16. Hildebrand, Henry--Standing Chapter 13 Bankruptcy
Trustee for the Middle District of Tennessee who was called as
an expert witness by Judge Porteous on bankruptcy law.
17. Horner, DeWayne--FBI agent who was part of ``Operation
Wrinkled Robe'' and who led the related investigation of Judge
Porteous.
18. Keir, Duncan W.--Chief Judge of the U.S. Bankruptcy
Court for the District of Maryland who testified as an expert
witness for the House on the area of bankruptcy law.
19. Levenson, Leonard--Attorney with longstanding
relationship with Judge Porteous who represented Liljeberg in
the Lifemark v. Liljeberg case that is the subject of Article
I.
20. Lightfoot, Claude--Bankruptcy attorney retained by
Judge Porteous in the summer of 2000.
21. Mackenzie, G. Calvin--Professor of Government at Colby
College who was called as an expert witness by Judge Porteous
on the federal appointments process and Senate confirmation.
22. Mamoulides, John--Former Jefferson Parish District
Attorney from 1972 to 1996, during which time Judge Porteous
was an Assistant District Attorney and, later, a state court
judge.
23. Marcotte, Lori--Former employee of Bail Bonds Unlimited
and sister of bail bondsman Louis Marcotte.
24. Marcotte, Louis--Bail bondsman who founded Bail Bonds
Unlimited.
25. Mole, Joseph--Attorney who represented Lifemark in the
Lifemark v. Liljeberg case that is the subject of Article I.
26. Netterville, Bruce--Attorney with longstanding
relationship with the Marcottes and Judge Porteous.
27. Pardo, Rafael--Professor of law at the University of
Washington School of Law who was called as an expert witness by
Judge Porteous on bankruptcy law.
28. Porteous, Timothy--Judge Porteous's son.
29. Rees, Robert B.--Criminal defense attorney who
represented Aubrey Wallace on the set aside of his burglary
conviction.
30. Reynolds, Mike--Former Assistant District Attorney who
represented the state in the hearing on the motion to set aside
Aubrey Wallace's burglary conviction.
31. Tackett, Cheyenne--Former FBI Agent who was involved in
the background investigation of Judge Porteous for his federal
judicial nomination.
32. Wallace, Aubrey--Former employee of Bail Bonds
Unlimited.