United States v. Thomas Nelson, Jr.
2013 U.S. App. LEXIS 20752
5th Cir.2013Background
- Nelson, former mayor of New Roads, Louisiana, was undercover investigated for bribery tied to the Cifer 5000 system.
- Grace and a group of mayors formed an “A-Team”; Nelson showed willingness to accept cash for contracts.
- Nelson accepted multiple bribes, including cash, hotel room, Saints tickets, and a letter of support, in 2008–2009.
- The FBI used an undercover operation (Myles, Johnson) to elicit bribe schemes and obtain documents/letters.
- Nelson was convicted of bribery-related offenses; the district court calculated a guidelines range and imposed concurrent sentences.
- On appeal, the court affirms the conviction but vacates the sentence and remands for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entrapment instruction issue | Nelson asserts lack of predisposition and entrapment. | Govt argues predisposition shown; no entrapment. | No entrapment instruction required; predisposition shown. |
| Admission of Grace’s statements (co-conspirator hearsay) | Grace’s statements should be excluded as hearsay. | Statements fall under Rule 801(d)(2)(E) co-conspirator exclusion. | Correctly admitted under co-conspirator hearsay exception with independent evidence of conspiracy. |
| Admission of the factual basis from the plea agreement (Rule 410) | Factual basis should be excluded despite waiver. | Waiver valid; admissible to show voluntariness and truth-finding. | Waiver valid; admission permissible; harmless error given record. |
| Former attorney testimony about signing the factual basis | Attorney testified about client’s signing undermining privilege. | Privilege and Sixth Amendment rights apply. | Testimony was privileged; error harmless given other admissible evidence. |
| Sentencing loss calculation for bribery scheme | EPA letter, investor letter, and kickback scheme determine loss. | Valuations were reasonable estimates of intended loss. | Remand appropriate to recalculate loss; initial EPA/investor valuations require closer scrutiny. |
Key Cases Cited
- Theagene v. United States, 565 F.3d 911 (5th Cir. 2009) (predisposition and entrapment framework; non-dispositive presumption of predisposition where defendant eagerly participates)
- Mathews v. United States, 485 U.S. 58 (U.S. 1988) (entrapment defense pivots on defendant's predisposition)
- Bradfield, 113 F.3d 515 (5th Cir. 1997) (entrapment instruction appropriate when lack of predisposition evident)
- United States v. Reyes, 239 F.3d 722 (5th Cir. 2001) (preparation for predisposition shows active participation)
- United States v. Cavazos, 162 F.3d 1160 (5th Cir. 1998) (factors indicating predisposition include government-solicited conduct)
- United States v. Mezzanatto, 513 U.S. 196 (1995) (waiver of exclusionary rights in plea negotiations and admissibility of related statements)
- United States v. Sylvester, 583 F.3d 285 (5th Cir. 2009) (admissibility of plea-statement material with waiver; harmless error)
- United States v. Hebron, 684 F.3d 554 (5th Cir. 2012) (loss calculation framework for government benefits cases; determine loss by actual vs intended benefits)
- United States v. Roussel, 705 F.3d 184 (5th Cir. 2013) (remand for loss calculation when appropriate; assess intended loss specifics)