70 F.4th 846
5th Cir.2023Background
- Chad Scott, a former DEA agent who led a Northshore taskforce, and colleagues stole and concealed cash, phones, and other property seized during arrests and drug investigations.
- Scott induced informant Frederick Brown to buy a new Ford F-150 that Scott then seized, and he falsified DEA paperwork to conceal the out-of-jurisdiction seizure.
- Scott coached/suborned witnesses (Brown and Edwin Martinez) to identify Jorge Peralta, leading to Peralta’s conviction (later vacated) and other investigatory contamination.
- Evidence from an FBI raid (wallets, IDs, 17 cell phones) and witness testimony supported charges of falsifying government records (§1519), obstruction (§1512(c)(2)), perjury (§1623), conspiracy and conversion by a federal officer (§371, §654).
- Scott was convicted in retrial(s), sentenced to 160 months (district court varied downward from a higher Guidelines range), and appeals raised challenges to sufficiency, evidentiary rulings, juror bias, prosecutorial conduct, and sentencing calculations.
Issues
| Issue | Plaintiff's Argument (Gov't) | Defendant's Argument (Scott) | Held |
|---|---|---|---|
| Sufficiency — falsification (§1519) | Evidence showed Scott knowingly falsified DEA forms to conceal improper out-of-jurisdiction seizure and so intended to impede DEA administration | Misrepresentations were immaterial and lacked intent to impede DEA administration | Affirmed — materiality not element of §1519; jury could infer intent from concealment and expert testimony that DEA would not have approved seizure if told the truth |
| Sufficiency — perjury (§1623) & obstruction (§1512) | Scott testified falsely and suborned perjury; corroboration existed (Newman, Martinez’s attorney); false testimony led to conviction and damaged prosecutions | Key witnesses were arrested by Scott and thus incredible; convictions rest on their testimony | Affirmed — witness credibility for jury; corroboration supported convictions |
| Sufficiency — conversion (§654) | Trial showed Scott converted seized cash/phones/jewelry for personal use and destroyed evidence to conceal acts | No proof he held property for his own use | Affirmed — direct examples (trip to Spain, skimming cash) and destruction supported conversion inference |
| Admissibility — 21 U.S.C. §881(j) (venue/forfeiture) | N/A; Gov't opposed use as irrelevant | §881(j) would have authorized forfeiture in Louisiana, so Scott’s false statements did not impede DEA administration | Affirmed — §881(j) irrelevant to the prior seizure timing; exclusion not reversible; any error harmless |
| Use of Gemar proffer statement & Bruton/Confrontation | Proffer waiver allowed rebuttal when defendant advances contradictory theory; proffer statement did not facially incriminate Scott | Introducing Gemar’s proffer violated proffer agreement and Bruton rights | Affirmed — opening statement contradicted proffer triggering rebuttal; proffer statement did not facially incriminate Scott and limiting instruction cured any Confrontation Clause concern |
| Prosecutorial misconduct — closing argument | N/A; Gov't said its argument properly summarized jury’s duty and evidence | Prosecutor improperly told jury it had a duty to convict | Affirmed — remark proper in context and, in any event, cured by curative instruction; no substantial-rights prejudice shown |
| Juror bias (Juror 27) | Gov't: Gemar’s motion was separate; Scott didn’t move for new trial and thus lacks a district-court ruling to appeal | Scott: Juror 27’s undisclosed ties to Gemar’s wife required reversal or hearing (relying on Gemar panel decision) | No relief to Scott — he did not move under Rule 33; issue is forfeited/plain-error and he fails to show how bias affected his trial |
| Sentencing — loss amount (Guidelines §2B1.1) | District court reasonably estimated converted loss (≥ $98,000) based on trial testimony and PSR | Loss estimate relied on impeached witnesses and inconsistent math | Affirmed — district court’s loss estimate was a reasonable factual finding supported by testimony |
| Sentencing — perjury cross-reference (§2J1.3(c)(1) → §2X3.1) | Cross-reference applies because Scott’s perjury was "in respect to" Peralta’s criminal offense and increased offense level appropriately | Cross-reference applies only when perjury seeks to avoid punishment for oneself or another; not when it inculpates a third party | Affirmed — text covers perjury "in respect to" an offense regardless of intent to exculpate; any error harmless because court would have given same sentence via upward variance |
| Sentencing — leadership & abuse-of-trust enhancements (Ch.3) | Enhancements fit Scott’s role in suborning perjury and abusing public trust; even if misapplied, sentence would be same | §1B1.5(c) limits Chapter Three adjustments to conduct tied to the cross-referenced offense (Peralta drug offense), so adjustments were improper | Affirmed (or harmless) — court’s stated intent to impose same sentence makes any error non-prejudicial |
Key Cases Cited
- Bruton v. United States, 391 U.S. 123 (1968) (facially incriminating out-of-court confessions implicate Confrontation Clause)
- Richardson v. Marsh, 481 U.S. 200 (1987) (limiting instructions can cure some Bruton problems)
- United States v. Gemar, 65 F.4th 777 (5th Cir. 2023) (district court abused discretion by denying hearing on Juror 27 bias)
- United States v. Martinez, 106 F.3d 620 (5th Cir. 1997) (interpreting perjury cross-reference to §2X3.1)
- United States v. Sylvester, 583 F.3d 285 (5th Cir. 2009) (proffer waiver can be triggered by defendant presenting contradictory evidence)
- United States v. Moyer, 674 F.3d 192 (3d Cir. 2012) (§1519 does not include a materiality element)
- United States v. Kieffer, 991 F.3d 630 (5th Cir. 2021) (credibility determinations are for the jury)