State of Louisiana Versus Jared Diaz

• Court: Louisiana Court of Appeal
• Decided: November 17, 2021
• Docket: 20-KA-381
• Status: Unknown

Opinion

STATE OF LOUISIANA NO. 20-KA-381

VERSUS FIFTH CIRCUIT

JARED DIAZ COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 18-2516, DIVISION "N" HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING

November 17, 2021

SUSAN M. CHEHARDY CHIEF JUDGE

Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Stephen J. Windhorst

CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR CORRECTION OF ERROR PATENT SMC SJW

WICKER, J., DISSENTS WITH REASONS FHW COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Thomas J. Butler Brittany Beckner Lynn Schiffman

COUNSEL FOR DEFENDANT/APPELLANT, JARED DIAZ Lieu T. Vo Clark

COUNSEL FOR DEFENDANT/APPELLANT, JARED DIAZ In Proper Person CHEHARDY, C.J.

Defendant appeals his conviction and sentence for trafficking children for

sexual purposes. For the following reasons, we affirm.

PROCEDURAL HISTORY

On May 2, 2018, the Jefferson Parish District Attorney filed a bill of

information charging defendant, Jared Diaz, with one count of trafficking of

children for sexual purposes in violation of La. R.S. 14:46.3. At his arraignment

on May 4, 2918, Mr. Diaz pled not guilty to the charge.

On October 2, 2018, Mr. Diaz filed a pro-se motion to waive his right to

counsel and to represent himself. Following a Faretta1 hearing held on October

18, 2018, the trial court granted his motion, but ordered defense counsel, Renee

Bourg, to remain as shadow counsel. On February 27, 2019, the State filed its

notice of intent to use other crimes evidence pursuant to La. C.E. art. 404(B) and,

in the alternative, res gestae, and a notice of intent to call expert witnesses. On

March 22, 2019, Mr. Diaz filed pro se motions for a private investigator and for

preliminary examination.2 A preliminary examination was held on April 25, 2019,

and after hearing testimony, the court denied Mr. Diaz’s motion and found

probable cause for his arrest. Also at this hearing, the trial court granted the State’s

notice of intent to use other crimes evidence at trial.3

1 See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), wherein the U.S. Supreme Court held that criminal defendants have a constitutional right to refuse counsel and represent themselves in state criminal proceedings. At a Faretta hearing, the trial judge should inform the defendant of the charges, the basic trial procedures, and the hazards of self-representation. In the instant case, the record is replete with cautionary remarks by the presiding trial judge made to Mr. Diaz throughout the course of the proceedings regarding the seriousness of the charge against him and his decision to represent himself. It is noted that in April 2019, the trial court ordered a private investigator to assist Mr. Diaz with his defense. 2 In response to Mr. Diaz’s motion for a private investigator, on April 11, 2019, the trial court ordered a private investigator to assist Mr. Diaz with his defense. 3 On June 13, 2019, the trial court granted a Louisiana Uniform Abuse Prevention Order and Firearms Transfer Order against Mr. Diaz, and he was served with a copy in open court.

20-KA-381 1 Mr. Diaz declined a plea offer on December 16, 2019, and indicated he

wished to proceed to trial. On January 9, 2020, he was again informed of a plea

deal. The matter proceeded to trial on February 10, 2020. At the conclusion of

trial on February 12, 2020, the jury returned a unanimous verdict of guilty as

charged.

Sentencing for Mr. Diaz was scheduled for March 2, 2020. On that date,

Mr. Diaz made an oral motion for a new trial, which, after the matter was argued

and submitted, the trial court denied. After a victim impact statement was read, the

trial court sentenced Mr. Diaz to serve fifty years at hard labor in the Louisiana

Department of Public Safety and Corrections, with credit for time served. The

court issued a permanent Louisiana Uniform Abuse Prevention Order and a

Firearms Transfer Order. Mr. Diaz was provided with the written notification of

his sex offender registration obligations, and was informed of the time delays for

appealing his conviction and sentence. Also, the State informed the trial court of

its intent to file a multiple offender bill of information against Mr. Diaz.

On March 6, 2020, defendant filed a motion to reconsider sentence, which

the trial court denied on March 9, 2020. Also on March 6, 2020, Mr. Diaz filed a

motion for appeal, which was granted on March 9, 2020.

On July 14, 2020, following receipt of a handwritten letter from Mr. Diaz,

the trial court, on its own motion, ordered the appointment of a sanity commission

to evaluate Mr. Diaz’s competency to proceed with the multiple bill proceedings.

A competency hearing was originally set for August 19, 2020, and was repeatedly

continued. At the close of a competency hearing held on March 17, 2021, having

reviewed the commission’s reports, hearing testimony from the commission’s

expert of forensic psychiatry, Dr. Richard Richoux, and expert of forensic

psychology, Dr. Rafael Salcedo, and having considered the testimony and report of

20-KA-381 2 the State’s expert in forensic psychiatry, Dr. Michael Blue, the trial court found

Mr. Diaz competent to proceed.4

On April 12, 2021, the State filed a multiple offender bill of information

alleging Mr. Diaz to be a second felony offender.5 A multiple offender hearing

was conducted that same day and Mr. Diaz was adjudicated a second felony

offender. The trial court vacated defendant’s original 50-year sentence and,

pursuant to La. R.S. 15:529.1, sentenced Mr. Diaz to a term of 65 years

imprisonment at hard labor without benefit of probation or suspension of sentence.6

The trial court ordered that the sentence run concurrently with any and all other

sentences Mr. Diaz may be serving, and it informed Mr. Diaz of his sex offender

registration requirements. Mr. Diaz was given credit for time served and

committed to the Louisiana Department of Public Safety and Corrections.

Mr. Diaz now appeals challenging the excessiveness of his sentence and

raises five pro se assignments of error.

FACTUAL BACKGROUND

In this case, concurrent investigations conducted by the Jefferson Parish

Sheriff’s Office (“JPSO”) and the Federal Bureau of Investigations (“FBI”) led to

the arrest of defendant, Jared Diaz, for trafficking of children for sexual purposes.

At trial, the State called the following witnesses to testify: Deputy Ismael

Cornejo, Sergeant Michael Olivier, Detective Ian Donahue, Caitlyn Druckenmiller,

Special Agent Jennifer Terry, Lieutenant William Hare, and the victim, M.B.

4 Although Mr. Diaz represented himself at trial, the trial court appointed his shadow counsel, Renee Bourg, to represent him during both the competency proceedings and the multiple bill proceedings. 5 The predicate offense for the multiple bill was that on October 30, 2013, Mr. Diaz pled guilty to distribution of marijuana, a felony violation of La. R.S. 40:966(A), in the Twenty Fourth Judicial District Court, Division J, case number 13-4316. 6 Although the trial court vacated Mr. Diaz’s original sentence, it did not vacate the Louisiana Abuse Prevention or Firearms Transfer Orders.

20-KA-381 3 Deputy Ismael Cornejo

On December 14, 2017, Deputy Ismael Cornejo, who was working in the

patrol division of the Kenner Police Department, responded to a 9-1-1 call

regarding a robbery investigation involving Jared Diaz. Deputy Cornejo testified

at trial that the initial dispatch indicated that two black males had robbed a female

and her friend at gunpoint in a hotel parking lot located on Williams Boulevard,

taking their money, an iPhone, and an Android phone. According to Deputy

Cornejo, on the way to the scene, he spotted a vehicle matching the description of

the robbery suspect’s vehicle, a white Lincoln MKZ, parked in the lot of a Circle K

gas station located a block away from the LaQuinta Hotel where the robbery had

purportedly occurred. Deputy Cornejo stated that when he approached the vehicle,

he observed two black males matching the description provided by the 9-1-1 caller.

He testified that Mr. Diaz advised him that there was a BB gun underneath his seat.

When Mr. Diaz and the passenger, Kenneth Patterson, exited the vehicle, Deputy

Cornejo observed a BB gun, which looked like a handgun, underneath the seat, and

several cell phones in the center console, one of which matched the description

described by dispatch. Deputy Cornejo testified that he did not search Mr. Diaz,

but only patted him down for weapons.

According to Deputy Cornejo, there were a total of five cell phones found in

the vehicle, two of which Mr. Diaz and Mr. Patterson claimed ownership. Deputy

Cornejo seized the remaining three phones, including a white iPhone with a

“glittery” case, a purple phone matching the description provided to dispatch, and a

black iPhone. He stated that while he was interrogating Mr. Diaz and Mr.

Patterson at the Circle K, other officers responding to the 9-1-1 call were at the

LaQuinta Hotel trying to find the 9-1-1 caller, who was never located.

20-KA-381 4 Sergeant Michael Olivier

On January 23, 2018, the JPSO, Vice Crimes Division, was conducting an

investigation into the illegal escort services providing prostitution at hotels on the

East Bank of Jefferson Parish, and were looking for possible human trafficking

victims. At trial, Sergeant Michael Olivier testified that during the investigation,

he and his unit located a Backpage.com advertisement, which was admitted into

evidence, containing multiple photographs of a female promoting an alluring

encounter with a 21-year-old in Lakeview. According to Sergeant Olivier, the

reason the advertisement caught the unit’s attention was because it depicted a

young female, who was later identified as 17-year-old M.B.,7 the victim herein.

Using the contact number listed on the advertisement, via text messaging, Sergeant

Olivier was able to set up a “date” at the Super 8 Motel in Metairie, Louisiana.

Although Sergeant Olivier was texting to the contact number listed in M.B.’s

advertisement on Backpage.com, he had no way of knowing whether he was

actually communicating with M.B. or with someone else on her behalf. The text

messages included pricing ($100–20 minutes, $150–30 minutes, $200–an hour),

and queried whether the “date” would be for an in-call, out-call, or car “date,” all

of which confirmed for Sergeant Olivier that the “date” was one for prostitution.8

When Sergeant Olivier arrived at the Super 8 Motel, other detectives from

the JPSO vice unit were in the area surveilling. He went to the designated room,

235, and was greeted by M.B., who matched the photographs in the Backpage.com

advertisement. After M.B. agreed to exchange sex for money, Sergeant Olivier

gave the pre-arranged signal for backup officers to come to the hotel room and

7 Herein, the victim will be identified by initials only in accordance with La. R.S. 46:1844(W), which allows the Court to protect the identity of a crime victim who is a minor, a victim of sex offense, or a victim of a human trafficking related offense by using his or her initials. 8 Sergeant Olivier explained that an “in-call” is where the client goes to the prostitute, an “out-call” is where the prostitute goes to the client, and a “car date” is where the prostitute meets the client at a car and the prostitution act takes place.

20-KA-381 5 effect the arrest. M.B. was arrested on the scene and officers seized a cell phone

found in her possession. When the officers ran M.B.’s name, they learned that she

was 17 years old. When asked if she was being forced to conduct prostitution

dates, M.B. refused to answer and refused to cooperate with law enforcement.

Officers then spoke with the hotel manager, who confirmed that Jared Diaz was the

person who rented Room 235, and provided a photocopy of his driver’s license,

which Mr. Diaz used during check-in. Sergeant Olivier identified photographs of

the Super 8 Motel room, of the bathroom where M.B. placed the money that was

given to her for the prostitution date, and of condoms and petroleum jelly, which

he explained where known “tools of the trade” for prostitutes.

Sergeant Olivier testified that after M.B.’s arrest, JPSO continued its

investigation and were able to connect Mr. Diaz to M.B. through multiple motel

room registrations and computer searches. On January 24, 2018, and January 25,

2018, a court order was obtained for M.B.’s advertisement on Backpage.com. The

Backage.com return identified the account holder’s email address as

C.Drunkenmiller@yahoo.com, and provided more information for the JPSO’s

investigation into Jared Diaz. Additional research by JPSO revealed the identity of

Mr. Diaz’s vehicle as a 2012 white Lincoln MKZ registered in his name.

Detective Ian Donahue

Detective Ian Donahue of the JPSO, who also participated in the

investigation of M.B. and Mr. Diaz, testified at trial that once learning from the

Backpage.com return that the holder of the account was Caitlyn Druckenmiller, he

contacted her on the phone number listed in one of the advertisements and set up a

“car date” with her, which she explained would cost $60. He met with her at the

agreed upon location, which he believed was in front of her house, and once she

asked for the money and the services were discussed, Detective Donahue gave the

pre-arranged signal to JPSO officers surveilling in the area. He was then pulled

20-KA-381 6 over and Ms. Druckenmiller was arrested. Ms. Druckenmiller cooperated with law

enforcement, providing information concerning her connections with Mr. Diaz and

M.B. She also disclosed the name of Michelle Scala, a third female associated

with Mr. Diaz. Ms. Druckenmiller sent Detective Donahue screenshots of Ms.

Scala from Instagram and Facebook, from which JPSO officers were able to

further their investigation of Mr. Diaz. Based upon JPSO’s investigation into Mr.

Diaz, Sergeant Olivier prepared an affidavit for arrest warrants for Mr. Diaz for

trafficking children for sexual purposes and for pandering.

Using the information provided by Ms. Druckenmiller, Sergeant Olivier

contacted Michelle Scala through a Backpage.com advertisement. Through text

messages, Sergeant Olivier set up an “out-call date” with Ms. Scala for February

28, 2018, at the same Super 8 Motel in Metairie where he previously had a “date”

with M.B.9 Ms. Scala was arrested for prostitution on that date. Photographs of

condoms, pills, a crack pipe, and a blunt located inside of the motel room were

admitted into evidence. Detective Donahue was a covering officer at the scene,

and confirmed that Ms. Scala was dropped off for the date by a white Lincoln

MKZ.10 He stated that the vehicle was located at the InTown Suites nearby. The

vehicle was stopped, and Mr. Diaz was the driver. Detective Donahue testified

that Mr. Diaz had two active arrest warrants for the trafficking of children for

sexual purposes and for pandering, and was arrested at that time. Several cell

phones and a social security card for Kenneth Cantrell were located inside of Mr.

Diaz’s vehicle. Detective Donahue found a BB gun in a blue backpack located

inside of the trunk.

9 Sergeant Olivier explained that on this occasion, JPSO made prior arrangements with management for the Super 8 Motel to use a hotel room as a part of its investigation. Thus, the “date” with Ms. Scala was set up as an “out-call date” since she came to the client. 10 On cross-examination, Detective Donahue conceded that he did not personally see Ms. Scala being dropped off by a white Lincoln MKZ, but that it was observed by another covering officer involved in the investigation.

20-KA-381 7 Caitlyn Drunkenmiller

Caitlyn Druckenmiller told the jury that she was 30 years old and currently

incarcerated in Indiana for a “level six theft.”11 She testified that she met Mr. Diaz

in the summer of 2017 while living in Kenner and working as a prostitute. He “hit

her up” through an advertisement she had posted on her Backpage.com account,

which she set up in 2016 or 2017. They met, had sex, and he gave her some

money. Several months later, Mr. Diaz contacted her again and told her he had

someone working with him and he wanted her to work with him, too, which she

believed meant that Mr. Diaz wanted them “to make some money,” but she was

not interested. She testified that Mr. Diaz continued to contact her telling her

things, which led her to believe that he really liked her and that “it was going to be

more than money … like a relationship” between the two. Because she had a

falling out with her boyfriend, she decided to go with Mr. Diaz and M.B. to a hotel

before returning home.12 She ended up with them again at the Super 8 Motel and

then the InTown Suites following another fight with her boyfriend.

Ms. Druckenmiller told the jury that she would not have agreed to go with

Mr. Diaz if she had not believed that a relationship with him would occur.

However, instead of a relationship, it turned out to be “all about money,” which

involved posting ads on Backpage.com, getting high, and having sex with strangers

for money. She confirmed that she, M.B., and Michelle Scala, who allegedly grew

up with Mr. Diaz and was a heavy drug user, engaged in these activities. Ms.

Druckenmiller described M.B. as innocent and “very naïve to the situation.” She

stated that, because neither Mr. Diaz, M.B., nor Ms. Scala had their own

11 Ms. Druckenmiller confirmed that she had other convictions in Kentucky as well, including stolen property and drug charges, to which she pled guilty, that occurred prior to her involvement with Mr. Diaz. Additionally, in 2018, she pled guilty to charges for simple burglary and the unauthorized use of a motor vehicle. 12 Ms. Druckenmiller admitted that she had previously been living at the InTown Suites prior to having moved into a house.

20-KA-381 8 Backpage.com accounts, advertisements for their “dates” were posted through her

account.13 She explained that Mr. Diaz initially gave her drugs in exchange for

posting ads for M.B. and Ms. Scala using her Backpage.com account, but at some

point, she lost access to it because Mr. Diaz took over the account by changing her

password. She stated that she contacted Mr. Diaz on several occasions concerning

her account, but he refused to respond.14

Ms. Druckenmiller testified that Mr. Diaz told her not to teach M.B. or Ms.

Scala how to use Backpage.com. She explained that Mr. Diaz would have her post

advertisements for M.B. and Ms. Scala, and that when a “potential John” contacted

the number listed, he would reply via text messaging to set up the “date.” If a

potential client would call in response to an ad rather than text, Mr. Diaz would

hand the phone to her, M.B., or Ms. Scala, accordingly. She testified that Mr. Diaz

would rent the hotel room for their “in call” dates, and transport them to and from

any “out call” dates because none of them had cars. She initially described Mr.

Diaz’s vehicle as a “newer white or silver” vehicle, but then stated that she did not

know what kind of car it was. Ms. Druckenmiller testified she did not remember

doing “car visits” with Mr. Diaz, but stated that when she had a car date, she would

have the client pick her up and then drop her back off.

Ms. Druckenmiller testified that Mr. Diaz told her that M.B. was 19 years

old. She expressed that she was scared for M.B. because M.B. looked so young.

She claimed that she provided M.B. with lingerie and did her makeup. She noticed

that Mr. Diaz held all of M.B.’s money, which concerned her, and that as soon as

she was able to get M.B. alone, she advised her against letting him do so. After

13 Ms. Druckenmiller confirmed that the email she used for the account was “C.Drunkenmiller@yahoo.com.” 14 According to Ms. Druckenmiller, even though Mr. Diaz had effectively locked her out of her own Backpage.com account, she had enough “regulars” that she did not need to personally post ads for herself. She admitted that, when asked by Mr. Diaz, she posted ads on her Backpage.com account for other females in Louisiana and Mississippi.

20-KA-381 9 Mr. Diaz learned of this, Ms. Druckenmiller was not ever again allowed to be

alone with M.B. She had no knowledge about Ms. Scala’s money. She claimed

that she provided Mr. Diaz with money to help pay for the hotel while she was

with him. She recalled that Mr. Diaz kept a gun in his vehicle, which he claimed

was for “in case something happened.” He told her that she was lucky to know

him because he and his friend would “pick up girls off Backpage to rob them.”

Ms. Druckenmiller testified that on February 8, 2018, she had a “car date,”

which led to her arrest.15 She explained that after being dropped off by a client

from a previous “car date,” she met with an individual, who turned out to be an

undercover officer, down the street from her home. She stated that she cooperated

with law enforcement and provided specific information regarding Mr. Diaz, M.B.,

and Ms. Scala, including how Mr. Diaz recruited her, how he transported her and

other women to “out calls” and to hotels, how she was isolated from M.B., and

how Mr. Diaz provided for her by giving her a hotel room to stay in and drugs in

exchange for her posting ads for him. Additionally, she identified Mr. Diaz and

M.B. in photographic lineups, and identified Mr. Diaz’s moniker on Facebook as

“Miss Understood.” She also identified a Backpage.com ad of M.B. Although she

could not recall whether she or Mr. Diaz had posted the particular ad, she noted

that Mr. Diaz provided her with photographs of M.B. that she posted on her

Backpage.com account. Ms. Druckenmiller testified that she pled guilty to

prostitution, and she continued to cooperate with law enforcement in regards to

Ms. Scala. She specifically identified Mr. Diaz in open court.

Special Agent Jennifer Terry

Special Agent Jennifer Terry, who has been working human sex trafficking

cases for the FBI since 2009, testified that children under the age of 18 are

15 Ms. Druckenmiller admitted to having previously been arrested in Jefferson Parish at a “Brother’s by Intown.”

20-KA-381 10 automatically—without force, fraud, or coercion—considered victims of sex

trafficking because they are unable to consent. She stated that the FBI, with the

assistance of the Louisiana State Police, came into contact with the victim, M.B.,

on February 1, 2018. She explained that the FBI had established a “human

trafficking recovery operation” and set up an undercover operation at a hotel in

New Orleans. She testified that the FBI searched “predicted websites” where

pimps and traffickers post prostitution advertisements, and then the FBI would

contact the numbers listed on the ads to try and solicit the prostitutes or victims to

come to the undercover hotel. In M.B.’s case, the undercover hotel was the

Homewood Suites located on Rampart Street near the French Quarter.

Special Agent Terry testified that an undercover agent arranged the

prostitution date with M.B. and actually met her in the lobby of the hotel prior to

taking her to the room. Once a verbal agreement for sex in exchange for money

occurred between M.B. and the undercover agent, other law enforcement agents

entered the room. A black Huwei cell phone and two Trojan condoms were seized

from M.B. Special Agent Terry explained that she was not one of the agents that

went into the room, but rather, she was in the interview room and conducted the

initial interview with M.B. upon her recovery. She described M.B. as being scared

and only willing to provide minimal information, including that she was 17 years

old. Although M.B. would not reveal the name of her trafficker, Special Agent

Terry testified that the minimal information M.B. did provide was enough to

confirm for her that M.B. was a victim of human trafficking. She stated it is not

uncommon for victims to withhold the name of their trafficker. On the night M.B.

was recovered, the FBI contacted a local non-profit organization, who made

temporary arrangements for her to stay at a hotel in Baton Rouge. M.B. was

assigned a social worker for counseling.

20-KA-381 11 Special Agent Terry testified that after M.B. was transferred to a long-term

facility for victims of human trafficking, she was able to conduct a second

interview with M.B. On February 16, 2018, Special Agent Terry and another

detective met with M.B. and showed her several photographic lineups. From

these, M.B. identified Mr. Diaz, Caitlyn Druckenmiller, and Mr. Diaz’s white

Lincoln MKZ. M.B. disclosed to Special Agent Terry that she had been arrested in

Jefferson Parish a few weeks prior, so the FBI reached out to Sergeant Lacascio

with the JPSO Vice Squad to exchange information. She was able to confirm

M.B.’s January 23, 2018 arrest. Sergeant Lacascio advised Special Agent Terry

that during JPSO’s operation, they had gone to a hotel, conducted an “in-call date,”

and recovered M.B. Sergeant Lacascio advised that JPSO also learned that the

hotel room had been registered to and paid for by Jared Diaz, and that there was a

Lincoln MKZ associated with Mr. Diaz. Using this information, the FBI agents

pulled video surveillance footage from the area surrounding the Homewood Suites

and were able to determine that there was a Lincoln MKZ in the area at the time of

M.B.’s date with the undercover agent.16

Special Agent Terry testified that in connection with the FBI investigation,

her co-agent, Agent Justin Berry, issued a subpoena duces tecum to Backpage.com,

and that the return included the advertisements featuring M.B. on the website. She

testified that further into the investigation, the FBI learned that M.B. had been

16 Special Agent Terry explained that there were three videos located on the disc, which were admitted into evidence at trial that corresponded with different street cameras located at Bourbon and Conti, Bourbon and St. Louis, and Canal and Bourbon. She testified that in a video labeled “Bourbon and Conti,” a Lincoln MKZ could be seen crossing Bourbon Street near the Homewood Suites on Rampart. She confirmed that it was common for a trafficker to remain in the area when a prostitute heads out to calls. Next, she testified that the video labeled “Bourbon and St. Louis” also revealed the vehicle and that a driver could be seen. She noted that it appeared that a passenger was inside of the vehicle, but that the driver and passenger could not be identified. In the third video, she confirmed that she was able to locate the white Lincoln MKZ in the area of Canal and Bourbon at the time of the undercover instigation with M.B. On cross-examination, Special Agent Terry testified that she was unable to obtain a copy of the video surveillance from the Homewood Suites before the hotel manager died suddenly. She testified that she was, however, able to previously view the video. She recalled observing a white Lincoln MKZ pulling off onto a side street of the hotel, and M.B. walking around the corner into the hotel. She stated that M.B. was dropped off by the white Lincoln MKZ.

20-KA-381 12 recruited to prostitution by an individual through Facebook, who was using the

moniker, “Miss Understood.” She pointed out that in one of the advertisements,

the individual listed the Facebook “Miss Understood” account as the point of

contact to book a prostitution date. She testified that the FBI learned that the

Facebook account belonged to defendant, Jared Diaz. She testified that the FBI

also learned that the account used to create the Backpage.com advertisements for

M.B. had an email address belonging to Caitlyn Druckenmiller.17 The FBI

eventually applied for a search warrant for the account and verified that it belonged

to Ms. Druckenmiller.

Special Agent Terry testified that in her interview with M.B. in February

2018, M.B. disclosed that she and Mr. Diaz moved around from hotel to hotel in

Jefferson Parish, staying only one or two nights at a time, in order to avoid

suspicion by hotel employees and hotel management. Based on this information,

Special Agent Terry stated that she was able to obtain hotel registration

information for various hotels in the area and discovered that from October 10,

2017, through January 23, 2018, the date of M.B.’s arrest and recovery by JPSO,

Mr. Diaz had registered and paid in cash for 14 different rooms in four different

hotels located in Jefferson Parish, and generally for only one or two nights at a

time.18 The registration forms frequently listed a white Lincoln MKZ associated

with the different rooms, which she confirmed was the same vehicle identified in

the video surveillance footage obtained by the FBI on the night M.B. was

recovered at the Homewood Suites in New Orleans.

Special Agent Terry testified that she confirmed that Mr. Diaz was the

owner of the Huawei cell phone seized by the FBI from M.B. on February 1, 2018.

17 Special Agent Terry explained that an email address is required to set up the Backpage.com advertisements, in order to pay for the advertisements, obtain receipts, and other information. 18 Hotel registration information obtained from Econolodge, InTown Suites, LaQuinta Hotel, and Super 8 Motel was introduced into evidence.

20-KA-381 13 She stated that she applied for a search warrant for the phone, and that the phone

records showed numerous texts for potential prostitution dates, including texts

exchanged with the FBI’s undercover agent. She testified that Mr. Diaz’s phone

contained images depicting large amounts of cash, flashy jewelry, which she

explained are images typically found on a pimp’s phone. Photos of Caitlyn

Druckenmiller, saved in a folder called, “Caitlyn,” created on January 14, 2018,

and which were used in prostitution advertisements, were also contained on the

phone. Special Agent Terry testified images of M.B. that were used in multiple

prostitution advertisements, including advertisements on Backpage.com, were also

found on the phone. She described two nude photographs saved under a folder in

M.B.’s first name. She testified that these nude photos of M.B. on Mr. Diaz’s

phone were of particular interest to the FBI because M.B. was a minor, and

because it is common when arranging a prostitution date, that nude photographs

are sent between the pimp and the potential date as part of the negotiation pattern.

According to Special Agent Terry, there were other text messages found on

Mr. Diaz’s phone that were suggestive of sex trafficking, including messages

containing price quotes and requesting the cost of the “donation.” She explained

prostitutes often use the term “donation” as a safeguard against law enforcement to

show that they are not actually charging for their services. Mr. Diaz’ phone also

contained messages asking whether the person texting was involved in law

enforcement, which is also indicative of prostitution because there is a

misconception that law enforcement, when asked, has to identify themselves.

Other text messages on his phone referenced the availability for an “in call or an

out call,” which Special Agent Terry explained are common prostitution terms.

Special Agent Terry testified that Mr. Diaz’s phone also contained several

messages involving Caitlyn Druckenmiller related to her Backpage.com account.

In particular, she located the text messages that corroborated Ms. Druckenmiller’s

20-KA-381 14 testimony that she had unsuccessfully tried to gain access to her Backpage.com

account, and sent text messages to Mr. Diaz requesting the password to which he

did not respond.

According to Special Agent Terry, she applied for a search warrant to

Facebook for both Mr. Diaz’s “Miss Understood” account and M.B.’s account.

She explained that M.B. had been recruited into prostitution through this account

in 2017 when she was 16 years old, and that the first advertisement for M.B. was

posted in December 2017. She was able to confirm that the Facebook account for

“Miss Understood” was registered to a backup email address,

Diaz1198@yahoo.com, and the “vanity name” for the account was “Diaz504.”19

She stated that Mr. Diaz and M.B. would message one another through Facebook,

and she was able to confirm these conversations between the accounts. Special

Agent Terry testified that she was also able to locate photographs on Mr. Diaz’s

account of his Lincoln MKZ.

Special Agent Terry testified that during her search of Facebook, she

uncovered information that further connected Mr. Diaz and M.B. to the January

2018 arrest by JPSO. Specifically, she testified that there were messages from the

date M.B. was arrested, and that on January 24, 2018, Mr. Diaz sent a message to

M.B. asking, “where you at?” Special Agent Terry relayed that M.B. replied, “I

got arrested. I’m out now. I need you to come get me.” Special Agent Terry

testified that she reviewed messages in which M.B. discussed a prostitution date,

and discussed evading the police. She relayed that there were messages wherein

M.B. asked to be picked up from a date, and where Mr. Diaz asked if M.B was

finished. She confirmed that this was consistent with the relationship between

19 Special Agent Terry testified that she was able to confirm that Mr. Diaz used this account through one of the messages he sent on Facebook Messenger wherein he identified himself by name and wrote that he was the son of Deborah Diaz.

20-KA-381 15 M.B. and Mr. Diaz. She testified that Mr. Diaz brought M.B. with him wherever

he went, drove her to all of her “out calls,” and then they stayed together at the

same hotels. She also explained that although M.B. did have a personal phone, her

service had been turned off. When the two were apart, M.B. and Mr. Diaz would

primarily communicate through Facebook Messenger.

Special Agent Terry testified that M.B. was operating under the belief that

she was in a relationship with Mr. Diaz. She explained that this was a “typical

pimp/prostitute relationship or recruiting mechanism.” She testified that an

individual will be told that they need to go out and earn money for the two of them

to survive. She stated the relationship slowly evolves into a more controlling

situation with threats or violence. She testified that she learned M.B.’s date of

birth was January 2, 2001. She confirmed that at the time of the investigation on

February 1, 2018, M.B. was being trafficked and was under the age of eighteen.

Lieutenant William Hare

JPSO Lieutenant William Hare, commander of the Vice Division, was

qualified as an expert in the area of human trafficking. He described human

trafficking as a “pimp/prostitute” relationship, where the prostitute is generally

under the control of the pimp. He explained that it occurs when a person is forced

to do something against his or her will in order for the trafficker to make a profit

off of the other. He noted that the “force” employed does not have to be physical

and could include coercion or fraud. Lieutenant Hare explained that in trafficking,

there are specific stages, which include: the recruiting stage; the seduction stage;

the isolation stage; the coercion and violent stage; the non-romantic/non-

relationship stage; the reframing stage; and the grooming stage. He testified that

human trafficking occurs on certain websites used by traffickers to advertise their

product, i.e., a girl, with prices available. He described a typical victim of human

trafficking as one who comes from a broken home, has no place to go, has low

20-KA-381 16 self-esteem, and may or may not have been sexually abused in the past and is

seeking to get out of that situation. Traffickers tend to seek out younger females

because they are more vulnerable and generally have no knowledge of a

relationship with a man.

Lieutenant Hare testified that he was familiar with Backpage.com and that

the JPSO Vice Division made numerous cases regarding prostitution and human

trafficking from the site. He explained that in some cases, the pimp takes charge of

management, including putting the hotel rooms in his name, answering phone calls

and text messages, and keeping track of the location of the women he pimps. He

further explained the different types of dates, including “out call dates,” “in call

dates,” and “car dates.”20 According to Lieutenant Hare, prostitution dates usually

occur in a hotel room, paid for in cash, and one night at a time in order that they

can leave quickly in the event law enforcement are in the area. He stated that the

pimp generally stays close by so that he can keep his eye on the victim, to ensure

that she does not escape or that violence is not done to her, and to monitor for

police. He testified that a pimp typically transports the victim in order that he can

maintain control over her. He described that “tools of the trade” are usually found

in the hotel rooms, which include lubricant, condoms, used wash cloths, and hand

towels. He stated that cash is often not found on the prostitutes because the pimp

generally controls the money.

Lieutenant Hare testified that victims of human sex trafficking rarely

cooperate with the police. He stated that he reviewed all of the police reports in

regard to Mr. Diaz’s investigation and concluded that the evidence in this case is

20 He confirmed that “out calls” occur when the girl goes to the client; “in calls” occur when the client meets the girl at hotel room; and “car dates” occur when the girl meets a person somewhere and the date occurs inside of the vehicle.

20-KA-381 17 consistent with Mr. Diaz using M.B. for purposes of engaging in commercial

sexual activity.

Testimony of the victim, M.B.

M.B., who was 19 years old at the time of trial, testified that she was born on

January 2, 2001. She stated that she came to Louisiana when she was 13 years old,

moved back to live with her father in Michigan, and returned to Louisiana when

she was 15, where she lived with her mother in Slidell. When she turned 16, she

moved in with her grandmother in Mandeville, but when the situation became too

overwhelming for her grandmother, she was kicked out, with no place to go.

M.B. testified that she met Jared Diaz on social media prior to being kicked

out. Although she was only 16 years old when she met him, she told Mr. Diaz that

she was over 18 because she was homeless, and she did not think someone her own

age would be able to help her. M.B. stated that when she was kicked out of her

grandmother’s house, she called Mr. Diaz for help and he came. She testified that

Mr. Diaz initially took her to his father’s house, but then they went to different

hotels, including the Super 8 Motel, LaQuinta, and other neighboring hotels. The

hotel rooms were always rented and paid for by Mr. Diaz. She explained that

when Mr. Diaz first came to get her, she believed their relationship was a

friendship. She stated that prior to meeting Mr. Diaz, she had never had sex in

exchange for money—this only occurred after she began going to hotels with Mr.

Diaz. She testified that her having sex with strangers in exchange for money began

when she was 16 years old, and ended just before her 17th birthday.

M.B. stated that Mr. Diaz taught her “how to call.” When someone would

call for a date, Mr. Diaz directed her as to what she was to say, what price to ask,

and on “every call you make ask them if they’re law enforcement.” M.B. testified

that Mr. Diaz posted her ads on Backpage, com, set up her dates, and took pictures

20-KA-381 18 of her for the ads.21 She confirmed that when someone would text her to set up a

date, Mr. Diaz would respond—he would not allow her to text.

M.B. testified that she did not have a car so Mr. Diaz transported her in his

white Lincoln when she met “johns” at other locations. She stated that Mr. Diaz

did not stay in the hotel room with her during the dates, and she denied knowing

where he was during those times. Mr. Diaz instructed her to set a timer for the

prostitution dates for whatever time he had previously negotiated, and to call him

when she was done. He directed her to put the money in the bathroom, and this is

what she did. After she was done, Mr. Diaz came to pick her up and he retrieved

the money. She stated that she gave all of the money she made from the

prostitution dates to Mr. Diaz—he never allowed her to keep even a dollar. She

testified that she was not allowed to deviate from any of the plans or rules.

M.B. claimed that in the beginning, she thought that maybe she could leave,

but this changed. She claimed that Mr. Diaz became “verbally violent” and

threatened that he would kill her and throw her in a river where no one would be

able to find her. Mr. Diaz also told her that he knew where her mother lived and

that if she ever tried to run away, if he could not get to her, he would get to her

mother. M.B. testified that when things reached this point, she did not believe she

could leave or run away. She testified that neither her mother nor her friends were

ever allowed to come visit her at any of the hotels. According to M.B., in all of the

time that she was with Mr. Diaz, she was only away from him for one night when

she went to stay with her mother. She testified that she did not tell her mother

what she was doing out of fear of Mr. Diaz.

M.B. testified that she met Ms. Druckenmiller and Ms. Scala while with Mr.

Diaz, and they gave her advice on what to do. Specifically, they advised her to

21 M.B. testified that she occasionally took pictures of herself for the ads that Mr. Diaz posted.

20-KA-381 19 keep her tips rather than give them to Mr. Diaz. She recalled Ms. Druckenmiller

helping her with her hair. She claimed that Mr. Diaz would take them to the mall

so that they could recruit other girls to go with them to the hotels to “take calls and

to do … the same thing [they] were doing.” M.B. testified that she began doing

cocaine and pills only after meeting Mr. Diaz.

M.B. confirmed that Mr. Diaz carried a pistol in the trunk of his car, which

she discovered when Mr. Diaz and his friend, “Smoke,” took her to the LaQuinta

hotel in Kenner so that they could rob a girl that Mr. Diaz had set up a date with

online.22 At Mr. Diaz’s direction, M.B. drove the car after he and Smoke completed

the robbery. She testified that Mr. Diaz robbed “dates” on more than one occasion,

sometimes alone and sometimes with Smoke. She stated that Mr. Diaz, who, by

this time, knew she was not 18 years old, wanted her to get a fake I.D. so that she

could buy guns for him.

M.B. testified that she was arrested on January 23, 2018, by the JPSO when

she was 17 years old. Mr. Diaz set up the date for her with the undercover officer

and rented room 235 at the Super 8 Motel. She confirmed that the “john” gave her

money, and that she put it in the bathroom. After she was arrested, she did not tell

the officers about Mr. Diaz because she was trying to protect him. She explained

that after leaving jail the following morning, she contacted Mr. Diaz because “he

was the only person [she] had.”23 She testified that when he came to get her, they

drove to a Baton Rouge motel located next to a bowling alley, where Mr. Diaz had

set up a date for her. She stated that they went to Baton Rouge because they were

scared the police were watching for them in Jefferson Parish. However, when she

was in the hotel waiting for her date, Mr. Diaz messaged her not to open the door

22 M.B. described “Smoke” as an “African-American, kind of husky, low haircut.” 23 M.B. explained that she used Facebook to communicate with Mr. Diaz, and confirmed that his moniker on Facebook was “Miss Understood.”

20-KA-381 20 because police were outside. M.B. stated that she got dressed and ran out of the

hotel to the bowling alley, where Mr. Diaz picked her up.

M.B. testified that after eventually returning to Jefferson Parish, Mr. Diaz set

up an “out call date” for her on February 1, 2018, at the Homewood Suites. He

drove her to the hotel in his Lincoln, and dropped her off. She said that she took

his phone with her on the date because she needed to maintain text messages with

the “john,” who turned out to be an undercover FBI officer. She claimed that she

provided a statement to the FBI, but still refused to give them Mr. Diaz’s name

because she was trying to protect him. The FBI arranged for her to go to a safe

house in Baton Rouge. She admitted that while there, she continued

communicating with Mr. Diaz, and that he came to visit her. She stated that he

“showed affection towards [her]” because “it would look good if someone was

watching [them].”

M.B. testified that she later agreed to cooperate with the FBI and spoke with

Special Agent Jennifer Terry. She identified Mr. Diaz, his Lincoln MKZ, and Ms.

Druckenmiller in photographs the FBI showed to her.24 She stated that the vehicle

she identified was the same vehicle Mr. Diaz used to transport her to dates, to take

her to Baton Rouge, and to drop her off in the French Quarter on February 1, 2018,

and was the same vehicle that Mr. Diaz used to transport Ms. Scala and Ms.

Druckenmiller. M.B. also identified Mr. Diaz in a photographic lineup that she

viewed with the JPSO and the FBI, as well as her ads from Backpage.com that

JPSO presented to her. She explained that Mr. Diaz took the photographs of her,

and he posted the ads on Backpage.com in order for clients to potentially contact

her for sex. M.B. identified Mr. Diaz in open court as the man she met when she

24 M.B. also identified an ad of Ms. Druckenmiller, an ad of herself, and a photograph of Ms. Scala, all of which were admitted into evidence.

20-KA-381 21 was 16 years old and who was responsible for setting up dates for her to have sex

with men in exchange for sex until she was 17 years old.25

During his case in chief, Mr. Diaz called the following witnesses in support

of his defense: Michelle Scala, Sergeant Michael Olivier, Deputy Ian Donahue,

Sergeant Solomon Burke, and the victim, M.B.

Michelle Scala

Ms. Scala confirmed that she had previously been arrested in Jefferson

Parish for drug possession, prostitution, and theft, including an arrest over a year

ago at the Super 8 Motel. She testified that, at the time, she was in “active

addiction,” using heroin, pills, and cocaine, and living a “selfish life.” She told

JPSO officers that she met Mr. Diaz through a friend, and that she and Mr. Diaz

were friends. She claimed that she would call him for rides to go “get stuff,” and

when she needed help to get away from an abusive relationship. She denied

feeling threatened, coerced, or forced to engage in prostitution for him—Mr. Diaz

was not her “pimp”—or that she ever gave him money. She testified she “kept

[her] own money” and “used to do [her]own thing, individually.”

Regarding M.B., Ms. Scala testified that she knew M.B. through drug use,

prostitution, hotels, and from “other places,” but denied knowing her very well.

She stated that M.B. was always wanting to be around, that M.B. used drugs, and

that M.B. told her she was a prostitute. Although Ms. Scala denied knowing

exactly how old M.B. was at the time, she testified that M.B. lied about her age.

She described Mr. Diaz and M.B. as having been in a dating relationship, and

denied that he was M.B.’s “pimp.” She recalled that Mr. Diaz would drive M.B.

25 On cross-examination, M.B. admitted that her Facebook page indicated that her birthdate was January 2, 1986, which was incorrect. She claimed that she lied about her birthdate because one had to be eighteen years old to make a Facebook page.

20-KA-381 22 back and forth to M.B.’s mother’s home in Metairie, and to other places because,

like herself, M.B. did not have a vehicle.

On cross-examination, Ms. Scala denied that Mr. Diaz ever dropped her off

at the Super 8 Motel, even when confronted with a call Mr. Diaz made to his sister

from jail, during which he told his sister that he had dropped off a friend at a hotel.

Sergeant Michael Olivier

Sergeant Olivier testified during the defense’s case that Mr. Diaz and Ms.

Scala were both arrested on February 8 or 9, 2018. He confirmed that he was

familiar with Ms. Druckenmiller, and confirmed that she was the account holder of

the advertisement that he contacted to set up a date. Sergeant Olivier explained

that the Backpage.com account could be controlled through a cell phone,

computer, or any electronic device with internet access.

Detective Donahue was also called by the defense to testify. He stated that

he was familiar with the arrests of Ms. Druckenmiller and Ms. Scala. He testified

that Mr. Diaz transported Ms. Scala in his white Lincoln to the Super 8 Motel and

that another covering officer, whose name he was unable to provide, observed this.

The detective explained that the information about Mr. Diaz’s vehicle was relayed

over radio between officers, but was not recorded.

Sergeant Solomon Burk

The parties stipulated that Sergeant Solomon Burk, the commander of the

JPSO Digital Forensic Unit, was an expert in the field of mobile device forensics.

He confirmed that he was asked to download information from the cell phones

seized in this matter, and stated that he placed the extraction on a disc that was

admitted into evidence. On cross-examination, Sergeant Burke testified that

depending upon how a cell phone is set up, whether or not it is locked or unlocked,

whether messages are being transmitted via cellular signals or data, and the varying

20-KA-381 23 messaging apps being used, he is not always able to download all of the messaging

information from every cell phone recovered in every case. He stated that in this

case, he was extracting information from an iPhone, which contained messages

exchanged through certain text applications. He explained that some of the

messages through the text apps may not be actual outgoing texts and could be

incoming texts. He also explained that a cell phone extraction cannot determine

the actual user of the phone.

M.B.

The defense called M.B., who confirmed that prior to meeting Mr. Diaz in

2017, the only drug she used was marijuana. She testified that she was in

possession of a “white rose gold iPhone” when she was arrested in Jefferson

Parish, a phone that Mr. Diaz used. When asked about a text message that referred

to a “girl,” M.B. explained that “girl” meant cocaine. M.B. denied that she ever

contacted any of her friends for a place to go for prostitution, or that a family

member “begged” her to come home so she could continue school. M.B. also

denied that, prior to meeting Mr. Diaz, she had ever solicited anyone for sex, gone

to hotels with random men, perform a strip show for men, or made a video for sex.

She stated the only reason she ran away with Mr. Diaz, a man she did not know,

was because she had nowhere else to go.26

On cross-examination, M.B. testified that she thought she met Mr. Diaz on

Facebook, but could not specifically recall the exact social media outlet on which

they connected. She stated that she also had his number and that they would

sometimes talk on the phone. After reviewing the extraction downloaded from her

phone, M. B. testified that there were several texts that she did not send, and

26 Mr. Diaz attempted to have M.B. read from a laptop, a series of text messages that were downloaded from her cell phone onto a computer disc. His court appointed shadow counsel, Ms. Bourg, requested that Mr. Diaz be allowed to publish the information on the laptop that he using during his questioning, which the trial court allowed. However, when Mr. Diaz failed to pose an actual question to M.B., the State lodged an objection, which the court sustained.

20-KA-381 24 explained that Mr. Diaz usually had access or possession of her phone when she

was with him, and that he would send text messages to persons she did not know.

M. B. denied that Ms. Druckenmiller or Ms. Scala had similar access or possession

of her phone.

Detective James N. Guidry

On rebuttal, the State called Detective James N. Guidry with the JPSO

Office Criminal Intelligence Division, who testified that a program called Securus

is used for jail house calls. He testified that all such calls are monitored and

recorded, and cannot be manipulated in any manner. He explained that each

inmate is given a PIN number that is used to make calls from the jail, and that at

the beginning of each call, the inmate or user is notified that the call may be

monitored or recorded. Detective Guidry stated that in this particular case, he

downloaded onto a disc a jail call that was recorded on March 2, 2018, and

provided the State with a copy, along with the corresponding paperwork. He

explained that the call was placed from Mr. Diaz’s PIN number/account to a

number identified as belonging to Candace Diaz, Mr. Diaz’s sister. Detective

Guidry confirmed that during the call, which occurred after Mr. Diaz was arrested

in the instant case, Candace referenced the caller by “Jared.” In the call, the caller

stated that he did not know what was going on (why he was arrested), because he

was only giving his “friend a ride” to a hotel, and that “they” have been watching

her because she’s prostituting, and “they” think that he is her pimp.

LAW AND ANALYSIS

On appeal, Mr. Diaz argues one counseled error and five pro se assignments

of error. Specifically, in his counseled assignment of error, and his pro se

assignment of error number four, Mr. Diaz argues the 65-year sentence imposed by

the trial court is constitutionally excessive. In his remaining four pro se

assignments of error, Mr. Diaz argues (1) the trial court erred in admitting evidence

20-KA-381 25 of prior bad acts under La. C.E. art. 404(B); (2) the trial court erred in failing to

grant his motion for new trial; (3) the trial court erred in failing to address his

Brady claim violation; and (5) ineffective assistance of counsel.

Constitutionally Excessive Sentence

Defense counsel and Mr. Diaz challenge his 65-year enhanced sentence—

which they contend amounts to a life sentence for 30-year old Mr. Diaz—as

constitutionally excessive.

The Eighth Amendment to the United States Constitution prohibits cruel and

unusual punishment. Article I, § 20 of the Louisiana Constitution also prohibits

cruel and unusual punishment, but further explicitly prohibits excessive

punishment. A sentence is considered excessive, even when it is within the

applicable statutory range, “if it makes no measurable contribution to acceptable

goals of punishment and is nothing more than the purposeless imposition of pain

and suffering and is grossly out of proportion to the severity of the crime.” State v.

Dixon, 17-422 (La. App. 5 Cir. 3/14/18), 241 So.3d 514, 523, writ denied, 18-542

(La. 2/11/19), 263 So.3d 415. In reviewing a sentence for excessiveness, the

appellate court must consider the punishment and the crime in light of the harm to

society and gauge whether the penalty is disproportionate as to shock the court’s

sense of justice. State v. Shaw, 12-686 (La. App. 5 Cir. 1/16/13), 108 So.3d 1189,

1195.

A trial judge is in the best position to consider the aggravating and

mitigating circumstances of a particular case, and therefore, is given broad

discretion when imposing a sentence. State v. Warmack, 07-311 (La. App. 5 Cir.

11/27/07), 973 So.2d 104, 109. The issue on appeal is whether the trial court

abused its discretion, not whether another sentence might have been more

appropriate. State v. Dorsey, 07-67 (La. App. 5 Cir. 5/29/07), 960 So.2d 1127,

1130, writ denied, 08-1649 (La. 4/17/09), 6 So.3d 786. The review of sentences

20-KA-381 26 under La. Const. art. 1, § 20 does not provide an appellate court with a vehicle for

substituting its judgment for that of a trial judge as to what punishment is most

appropriate in a given case. State v. Williams, 07-1111 (La. 12/7/07), 969 So.2d

1251, 1252 (per curiam).

The appellate court shall not set aside a sentence for excessiveness if the

record supports the sentence imposed. La. C.Cr.P. art. 881.4(D); State v. Pearson,

07-332 (La. App. 5. Cir. 12/27/07), 975 So.2d 646, 656. In reviewing a trial

court’s sentencing discretion, the reviewing court should consider the nature of the

crime, the nature and background of the offender, and the sentence imposed for

similar crimes by the same court and other courts. Id. at 656. However, there is no

requirement that specific matters be given any particular weight at sentencing.

State v. Tracy, 02-227 (La App. 5 Cir. 10/29/02), 831 So.2d 503, 516, writ denied,

02-2900 (La. 4/4/03), 840 So.2d 1213. Generally maximum sentences are reserved

for cases involving the most serious violations of the offense charged and the worst

type of offender. State v. Melgar, 19-540 (La. App. 5 Cir. 4/30/20), 296 So.3d

1107, 1115, writ not considered, 20-1199 (La. 3/9/21), 312 So.3d 267.

When determining the sentence to be imposed, a trial judge is not limited to

considering only a defendant’s prior convictions, but may properly review all prior

criminal activity. State v. Arceneaux, 19-472 (La. App. 5 Cir. 1/29/20), 290 So.3d

313, 316, writ denied, 20-324 (La. 5/14/20), 296 So.3d 608. The sentencing court

may rely on sources of information usually excluded from the courtroom at the

trial of guilt or innocence, e.g., hearsay and arrests, as well as conviction records.

Id.; See also State v. Myles, 94-217 (La. 6/3/94), 638 So.2d 218, 219. These

matters may be considered even in the absence of proof the defendant committed

the other offense. Arceneaux, 290 So.3d at 316.

In the instant case, Mr. Diaz was convicted of trafficking of children for

sexual purposes, a crime of violence, and was originally sentenced to 50 years at

20-KA-381 27 hard labor, the maximum sentence for this offense.27 Mr. Diaz was later

adjudicated a second felony offender. On the same day of his adjudication, his

original sentence was vacated, and the trial court sentenced him as a multiple

offender to 65 years imprisonment at hard labor to be served in the Department of

Corrections, without benefit of probation or suspension of sentence.

Defense counsel contends that prior to Mr. Diaz electing to go to trial, the

court relayed an offer of a plea bargain in exchange for a 15-year sentence, the

minimum mandatory sentence, but then later imposed the maximum sentence of 50

years, which the court vacated in order to impose the enhanced 65-year sentence.

Although defense counsel concedes that the sentence imposed falls within the

statutory sentencing range, counsel argues that for Mr. Diaz, at 30 years of age, it

is essentially a life sentence. Defense counsel contends that Mr. Diaz’s prior

conviction on the habitual offender bill was for distribution of marijuana, a non-

violent drug offense, that occurred when he was 24 years old, and that the trial

court did not have the “benefit of a pre-sentence investigation [‘PSI’] to adequately

consider the nature of the offender and whether he was the worse type of offender

to justify the exorbitant sentence for his offense.” Consequently, defense counsel

argues Mr. Diaz’s sentence should be vacated as constitutionally excessive.

In response, the State contends that the record supports the sentence imposed

and that the enhanced sentence is within the applicable sentencing ranges.

Specifically, the State argues the trial court did not abuse its broad sentencing

discretion because Mr. Diaz’s 65-year sentence is considerably lower than the

27 The penalty provisions for trafficking children for sexual purposes found in La. R.S. 14:46.3 provide for that “[w]hoever violates the provisions of Paragraph (A)(1), (2), (4), (5), or (6) of this section shall be fined not more than fifty thousand dollars, imprisoned at hard labor for not less than fifteen, nor more than fifty years, or both.”

20-KA-381 28 maximum sentence of 100 years,28 and does not impose a needless infliction of

pain and suffering. The State contends that Mr. Diaz’s criminal history as a second

felony offender and the particular circumstances of this case do not warrant

imposition of a lesser sentence. The State maintains that Mr. Diaz’s contention

that his sentence is excessive because the trial court, prior to trial, proposed a

sentence of 15 years in exchange for a guilty plea lacks merit as the record and

facts presented at trial support the 65-year enhanced sentence. The State asserts

the trial court did consider Mr. Diaz’s prior non-violent criminal history, but

determined that his acceleration to a violent sex crime makes Mr. Diaz the type of

offender the habitual offender statute was created to punish. We agree.

At the outset, we note that if a trial judge has agreed to impose a particular

sentence pursuant to a plea bargain, this does not restrict that judge from imposing

a more severe sentence if the defendant elects to go to trial and is convicted. See.

State v. Aleman, 01-743 (La. App. 5 Cir. 1/5/02), 809 So.2d 1056, 1066-67, writ

denied, 02-481 (La. 3/14/03), 839 So.2d 26. In this case, Mr. Diaz, chose to

proceed to trial. Thus, we find no merit to the contention that a proposed 15-year

pre-trial plea bargain supports a finding that Mr. Diaz’s enhanced sentence in this

case is constitutionally excessive.

Once Mr. Diaz was adjudicated a multiple felony offender and his original

50-year maximum sentence was vacated, under La. R.S. 15:529.1(A)(1), Mr. Diaz

faced a maximum sentence of 100 years at hard labor without benefit of probation

or suspension of sentence. The 65-year enhanced sentence imposed upon Mr. Diaz

clearly falls within the statutory range. Nonetheless, we must determine whether

28 The penalty for being a second felony offender found at La. R.S. 15:529.1(A)(1), provides that “[i]f the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-third the longest term and not more than twice the longest term prescribed for a first conviction.” Thus, the sentencing range Mr. Diaz was facing was 16.67 years to 100 years. His 65-year sentence is within mid-range of the statutory guidelines provided by the Legislature.

20-KA-381 29 the imposition of this sentence that falls within the statutory limits violates Mr.

Diaz’s constitutional right against excessive punishment. State v. Smith, 01-2574

(La. 1/14/03), 839 So.2d 1, 4. In doing so, we must consider the nature of the

crime, the nature and background of Mr. Diaz, and the sentences imposed for

similar crimes by this court and other courts. See Allen, supra, 868 So.2d at 880.

Undoubtedly, the nature of the crime committed by Mr. Diaz—trafficking of

children for sexual purposes—is heinous and of a serious nature. The testimony

and evidence presented at trial established that Mr. Diaz preyed upon and took

advantage of a young, 16-year-old girl, M.B., who was vulnerable, had no place to

go, and believed she had no alternative but to rely on him. The evidence showed

that he groomed her, isolated her, and coerced her into selling her body for his sole

benefit. Mr. Diaz involved M.B. in situations where he and his friend would pose

as dates and then rob and beat up the women. He provided drugs to M.B., and

threatened to kill her with a gun and throw her in a river, and/or hurt her mother

were M.B. ever to escape him. The evidence showed that M.B. feared for her life,

and had come to believe she was helpless and unable to leave Mr. Diaz.

Additionally, we find the impact statement of M.B. read at the sentencing

hearing on March 2, 2020, to be compelling. In her statement, which was heavily

relied upon by the trial court in making its decision regarding the appropriate

sentence to impose upon Mr. Diaz, M.B. described Mr. Diaz as a predator, and

claimed that she is still haunted by “memories of being trapped in a hotel selling

[her] body to a stranger.” M.B. expressed her hope that no one else would be

brainwashed into believing that she would have “to be a sex slave for the rest of

[her life] and that there’s no way out.” We agree with the trial court’s assessment

that the “facts [at trial] established [on the part of Mr. Diaz] a total, complete

disregard for [M.B.] as a human being,” and that this was “inexcusable.”

20-KA-381 30 Regarding the nature and background of Mr. Diaz, defense counsel and Mr.

Diaz contend that the court did not have the benefit of a pre-sentencing

investigation (“PSI”) to adequately consider whether Mr. Diaz was the worst type

of offender to justify the 65-year sentence. A PSI, however, is a tool used as an aid

to the trial court, not a right of defendant, and whether a PSI is ordered is

discretionary with the trial court. La. C.Cr.P. art. 875; State v. Torres, 05-260 (La.

App. 5 Cir. 11/29/05), 919 So.2d 730, 735, writ denied, 06-697 (La. 10/6/06), 938

So.2d 65.

Here, the trial court did not order a PSI, because it apparently determined

that it did not need one. During the original sentencing hearing, the trial court

stated that, based on the testimony and evidence presented at trial, it came to the

conclusion that Mr. Diaz was the “worst of the worst offenders.” The trial court

also stated that it was “cognizant of Mr. Diaz’s prior criminal history.”29 It is

apparent from the record that, at the time of sentencing, Mr. Diaz had other

pending criminal charges for pandering and possession of cocaine. While we

recognize that the predicate felony used for the multiple offender bill in this case

was a nonviolent drug offense, which defense counsel argues supports the position

that Mr. Diaz’s enhanced sentence is constitutionally excessive, a defendant’s non-

violent offenses “cannot be the only reason, or even a major reason, for declaring

such a sentence excessive.” State v. Lindsey, 99-3256 (La. 10/17/00), 770 So.2d

339, 343. Mr. Diaz’s conviction for trafficking of children for sexual purposes is a

crime of violence under La. R.S. 14:2(B)(42). Our review of the record suggests

that at no point during the course of the trial or sentencing did Mr. Diaz appear to

be remorseful or to take responsibility for his actions. To the contrary, despite the

29 A recitation of exactly what Mr. Diaz’s prior criminal history consisted of, however, was not placed on the record.

20-KA-381 31 enormity of the evidence adduced at trial, Mr. Diaz maintained that he did nothing

wrong.

While we found no similar cases challenging the excessiveness of a sentence

imposed by this court or other courts involving a second felony offender with an

underlying conviction of human sex trafficking of children, we find that the

extensive record in this case justifies the 65-year sentence at hard labor without

benefit of parole or suspension of sentence imposed on Mr. Diaz, and does not

shock this Court’s sense of justice.30 We find the sentence, which is well within

the statutory range, is not grossly disproportionate to the offense nor does it impose

needless or purposeless pain and suffering. Accordingly, we do not find the trial

court abused its broad sentencing discretion in this case. This assignment of error

is without merit.

Admission of Other Crimes Evidence

In his first pro se assignment of error, Mr. Diaz challenges the trial court’s

admission of other crimes evidence at trial. He specifically contends the trial court

erred in allowing the evidence when it was offered merely to show that he was a

bad person and had a “propensity for crime.” We disagree.

Prior to trial, the State filed its Notice of Intent to use other crimes evidence

pursuant to La. C.E. Art. 404(B) and, in the alternative, res gestae. The State

specified that it intended to introduce at trial evidence of other crimes committed

by Mr. Dias during the chain of events leading up to his arrest, including: (1) a

JPSO investigation involving Ms. Druckenmiller and Mr. Diaz; (2) a JPSO

30 In his pro se brief, Mr. Diaz also avers that his sentence is constitutionally excessive because of racial remarks and threats to kill him made by the trial judge at the March 2, 2020 sentencing hearing, which statements he claims the court reporter omitted from the record. The original sentence imposed on March 2, 2020, however, was vacated. Therefore, any arguments relating to the underlying sentence are now moot. See State v. Hanson, 00-1168 (La. App. 5 Cir. 12/13/00), 778 So.2d 43, 45. We also note that Mr. Diaz failed to comply with Uniform Rules–Courts of Appeal, Rule 2–12.4, which sets forth the required contents of an appellant’s brief, as his pro se brief provides no statutory law or jurisprudence regarding an excessive sentence and its application.

20-KA-381 32 investigation involving Ms. Scala and Mr. Diaz; (3) a Louisiana State Police/FBI

Investigation involving M.B. and Mr. Diaz; and (4) a Kenner police robbery

investigation involving Mr. Diaz. In its motion, the State provided a summary of

each investigation, and attached six exhibits: Exhibit 1, a JPSO crime report dated

January 23, 2018, regarding a prostitution investigation involving M.B.; Exhibit 2,

a series of registration forms from the Super 8 Motel from January 1, 2018 through

January 24, 2018, including the registration for room 235, in Mr. Diaz’s name with

a copy of his driver’s license; Exhibit 3, a JPSO crime report dated February 9,

2018, regarding a prostitution incident involving Ms. Druckenmiller and Mr. Diaz;

Exhibit 4, a JPSO crime report dated February 28, 2018, involving Ms. Scala and

Mr. Diaz; Exhibit 5, a FBI investigation report pertaining to M.B. involving

prostitution and an application for a search warrant; and Exhibit 6, a Kenner Police

report dated December 14, 2017, regarding an armed robbery investigation

involving Mr. Diaz and another individual.

A hearing on the State’s notice was held on April 25, 2019,31 wherein the

State submitted into evidence the six exhibits. In response, Mr. Diaz objected to

the State’s Exhibit 5 on grounds that he did not have a copy of the actual FBI

report or application for a search warrant, that the investigation involved

information obtained by another law enforcement agency that was unrelated to and

did not coincide with “what the State of Louisiana has against [him] right now,”

and because he was not indicted on “that.” Although given the express opportunity

to do so at the hearing, Mr. Diaz did not present argument or otherwise object to

the State’s introduction of other crimes evidence at trial regarding the JPSO

investigations involving Ms. Druckenmiller and Ms. Scala, the Kenner police

31 Mr. Diaz was present and represented himself at the hearing, despite continued advisements by the trial court against doing so.

20-KA-381 33 investigation, or the remaining five exhibits. At the close of the hearing, the trial

court granted the State’s 404(B) notice.

On appeal, in his argument that the trial court erred in admitting the other

crimes evidence at trial, Mr. Diaz specifically delineates the “other crimes

evidence” as consisting of the previously described six exhibits attached to the

State’s 404(B) notice of intent. Mr. Diaz argues at length that these six exhibits

did not tend to prove a material fact at issue nor rebut his defense, and the

prejudicial effect of the evidence outweighed its probative value. He also argues

the “other crimes evidence” failed to prove opportunity, plan, preparation,

knowledge, or any other permissible use under the article. Mr. Diaz contends the

evidence should also have been excluded because it was not similar to the charged

offense, and there was no clear and convincing “evidence of the commission of the

other crimes or a connection” to him.32

At trial, however, while the State elicited testimony through various

witnesses regarding the JPSO investigations of Ms. Druckenmiller and Ms. Scala,

and the Kenner Police Department’s robbery investigation of Mr. Diaz, the State

did not seek to admit the corresponding reports generated as a result of those

investigations (i.e., Exhibits 1, 3, 4 and 6 attached to the State’s 404(B) notice of

intent). The State did, however, introduce other exhibits relating to evidence

32 Generally, evidence of other crimes or bad acts committed by a criminal defendant is not admissible at trial. La. C.E. art. 404(B)(1); State v. Prieur, 277 So.2d 126, 128 (La. 1973). However, when evidence of other crimes tends to prove a material issue and has independent relevance other than to show that the defendant is of bad character, it may be admitted by certain statutory and jurisprudential exceptions to this rule. State v. Garcie, 17-609 (La. App. 5 Cir. 4/11/18), 242 So.3d 1279, 1284. Evidence of other crimes is admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding to such an extent that the State could not accurately present its case without reference to the prior bad acts. La. C.E. art. 404(B)(1); State v. Lawson, 08-123 (La. App. 5 Cir. 11/12/08), 1 So.3d 516, 525. In order for other crimes evidence to be admissible, one of the factors enumerated in La. C.E. art. 404(B)(1) must be admissible, have some independent relevance, or be an element of the crime charged. Garcie, 242 So.3d at 1284. Moreover, the probative value of the extraneous evidence must outweigh the prejudicial effect. La. C.E. art. 404(B)(1).

20-KA-381 34 obtained during those investigations.33 Mr. Diaz did not object to either the

testimony of the witnesses or to the admission of any of these other exhibits at

trial. Additionally, Mr. Diaz was given the opportunity and did, in fact, cross-

examine each of those witnesses.

During the State’s examination of Special Agent Terry, wherein she

provided testimony regarding the FBI’s investigation pertaining to M.B. involving

prostitution, the State sought to admit State’s exhibits 31 through 34 into

evidence.34 Special Agent Terry identified the exhibits as registration information

received from Econolodge, InTown Suites, LaQuinta Inn and Suites, and the Super

8 Motel, from October 10, 2017, through January 23, 2018, showing that each of

the rooms were rented and paid for in cash by Mr. Diaz. When asked by the trial

court if he had any objection to the introduction of these individual exhibits, on

each occasion Mr. Diaz responded, “No, sir.” Additionally, when the State sought

to admit State’s Exhibit 35,35 which Special Agent Terry identified as the

application for search warrant for a cell phone that she prepared in connection with

the FBI investigation, the trial court asked Mr. Diaz if he had any objection, and he

also responded, “No, sir.” The FBI’s written investigation report regarding M.B.

was not offered nor introduced into evidence by the State. Mr. Diaz cross-

examined Special Agent Terry regarding the FBI investigation.

After reviewing the trial transcript, we find Mr. Diaz did not properly

preserve the right to appellate review of the trial court’s alleged error in admitting

other crimes evidence. La. C.Cr.P. art. 841(A) provides that “[a]n irregularity or

33 The exhibits included photographs and advertisements of Ms. Druckenmiller and Ms. Scala placed on Backpage.com and text messages extracted from their cell phones 34 State’s Exhibits 32 through 34 admitted at trial correspond with State’s Exhibit 2 attached to its pre-trial notice of intent to introduce other crimes evidence. 35 State’s Exhibit 35 admitted at trial corresponds with State’s Exhibit 5 attached to its pre-trial notice of intent to introduce other crimes evidence, the only exhibit to which Mr. Diaz objected to at the 404(B) motion hearing.

20-KA-381 35 error cannot be availed of after verdict unless it was objected to at the time of the

occurrence.” To preserve the right to appellate review of an alleged trial court

error, a party must state a contemporaneous objection with the occurrence of the

alleged error as well as the grounds for the objection. State v. Enclard, 03-283 (La.

App. 5 Cir. 6/19/03), 850 So.2d 845, 853; State v. Mitchell, 11-1018 (La. App. 5

Cir. 6/28/12), 97 So.3d 494, 498-99.

At the pre-trial 404(B) notice of intent hearing, the only “other crimes

evidence” that Mr. Diaz objected to was the admission of a FBI investigation

report and application for a search warrant associated with that investigation. As

previously stated, however, the State did not introduce the FBI report at trial, and

even though Mr. Diaz objected to admission of the evidence at the pre-trial

hearing, he consented to the admission of the search warrant application, State’s

Exhibit 35, at trial by saying, “No, sir,” after the trial judge asked if he objected.

By failing to contemporaneously object to the admission of the evidence, Mr. Diaz

failed to preserve the issue of the admissibility of other crimes evidence for this

Court’s appellate review. See State v. Patin, 13-618 (La. App. 5 Cir. 9/24/14), 150

So.3d 435, 443, writ denied, 14-2227 (La. 4/22/16), 191 So.2d 1043; see also State

v. McGowen, 16-130 (La. App. 5 Cir. 8/10/16), 199 So.3d 1156, writ not

considered, 17-1675 (La. 10/27/17), 228 So.3d 1227. This assignment of error

lacks merit.36

36 We note that the erroneous admission of other crimes evidence has long been held subject to harmless error review. La. C.Cr.P. art. 921; State v. Garcia, 09-1578 (La. 11/16/12), 108 So.3d 1, 39, cert. denied, 570 U.S. 926, 133 S.Ct. 2863, 186 L.Ed.2d 926 (2013). An error is harmless, if the verdict was “surely unattributable” to the error. McGowen, supra, 199 So.3d at 1161-62. Here, even if Mr. Diaz had properly preserved the issue for our review, and even if we were to determine that the trial court erred in improperly admitting the evidence, we find that any such error is harmless because the jury’s verdict in this case was “surely unattributable” to any alleged error. Mr. Diaz was charged with trafficking children for sexual purposes in violation of La. R.S. 14:46.3. This crime requires proof that Mr. Diaz knowingly recruited, harbored, transported, sold, purchased, received, isolated, enticed, obtained, or maintained the use of a person under the age of eighteen years old for the purpose of engaging in commercial sexual activity. M.B.’s testimony standing alone provided proof from which the jury could unanimously conclude that Mr. Diaz committed the crime.

20-KA-381 36 Denial of Motion for New Trial

In his second pro se assignment of error, Mr. Diaz asserts because his Sixth

and Fourteenth Amendment rights were violated and he was deprived of a fair trial,

the trial court erred in denying his motion for new trial.37 Specifically, Mr. Diaz

argues the trial court erred in denying his motion for new trial because the State

intentionally deprived him of presenting evidence to the jury to see that

contradicted a witness’ testimony by refusing to provide him with printed copies of

excerpts from a computer disc, which contained a download of the content on

M.B.’s cell phone. Mr. Diaz claims that he was forced to present this evidence on

a laptop that some of the jurors indicated they were unable to see, which prevented

him from confronting an adverse witness and conducting an effective cross-

examination regarding material facts. Mr. Diaz asserts that when he attempted to

establish through his examination of M. B. that she had testified falsely about

material facts, the State objected, thereby allowing false testimony from M.B. (and

other witnesses) to go uncorrected, resulting in the jury being deprived of the

“true” facts. He argues that but for this error, the outcome of the trial would have

been different. We disagree.

Pursuant to La. C.Cr.P. art. 851(A), a new trial “is based on the supposition

that injustice has been done the defendant, and, unless such is shown to have been

the case the motion shall be denied, no matter upon what allegations it is

37 There appears to be a procedural irregularity involving the timing of Mr. Diaz’s written motion for new trial. La. C.Cr.P. art. 852 requires a motion for new trial to be in writing. La. C.Cr.P. art. 853 provides, in pertinent part, that a “motion for new trial must be filed and disposed of before sentencing.” At the sentencing hearing on March 2, 2020, Mr. Diaz stated that he had filed a written motion for new trial, however, the court’s records indicated otherwise. Nonetheless, the trial court allowed Mr. Diaz the opportunity to make an oral motion and to orally argue his motion prior to sentencing. After hearing argument, Mr. Diaz’s motion was orally denied, after which he was sentenced. After sentencing, but later that same date, the record shows that Mr. Diaz’s written motion was stamped filed, and on March 3, 2020, the trial court signed the motion and wrote, “Motion for New Trial was denied in Open Court on 3/2/20.” Because we find Mr. Diaz was given an opportunity to orally present and argue his motion prior to sentencing, and that the trial court did not err in denying the motion, we will presume for purposes of this appeal that the motion was timely filed.

20-KA-381 37 grounded.”38 A trial court’s ruling on a new trial motion will not be disturbed on

appeal absent a clear showing of an abuse of discretion. State v. Benoit, 04-436

(La. App. 5 Cir. 9/28/04), 885 So.2d 625, 632. Insofar as Mr. Diaz contends that

the State allowed false testimony from several witnesses to go uncorrected, our

review of the record reveals that Mr. Diaz did not lodge a single objection as to the

testimony of any witness during the three-day trial. Moreover, while the State did

make several objections during Mr. Diaz’s examination of certain witnesses,

including his examination of M.B., some—but not all—were sustained on grounds

of relevancy, hearsay, and the failure of Mr. Diaz to lay a proper foundation. With

respect to certain jurors being unable to see the text messages on the laptop during

Mr. Diaz’s examination of M.B., the record reflects that, in response to the State’s

objection of relevance, the trial court determined that Mr. Diaz had failed to lay the

proper foundation establishing that the information contained on the disc was

relevant, such that the evidence should have been seen by the jury. 39

Mr. Diaz further asserts that the trial court erred in failing to grant his

motion for new trial under La. C.Cr.P. art. 851(B)(1) because the State failed to

prove every essential element of the charged offense or meet its burden of proof

beyond a reasonable doubt, and that there existed a reasonable hypothesis of

innocence. He contends the State’s case rested on evidence allowed under La. C.E.

art. 404(B) of a federal investigation that did not result in an indictment, and on

38 Under La. C.Cr.P. art. 851(B), the trial court shall grant a new trial if, among other things: (1) the verdict is contrary to the law and the evidence; (2) the court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error; (3) new and material evidence is available that, despite the defendant’s due diligence, was not discovered before or during the trial, and had the evidence been introduced at trial it would probably have changed the verdict, (4) the defendant has discovered, since the guilty verdict, a prejudicial error or defect in the proceedings that, despite the defendant’s due diligence, was not discovered before the verdict; and (5) the ends of justice would be served by granting the new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right. See La. C.Cr.P. art. 851(B)(1) – (5) 39 Also, our review of the record supports the State’s contention that it was never asked, ordered, nor otherwise refused to provide Mr. Diaz with printed copies of the downloaded information or extraction from M.B.’s cell phone contained on the computer disc.

20-KA-381 38 evidence of an armed robbery for which he was not charged, resulting in

prejudicial error under La. C.Cr.P. art. 851(B)(2). Further, Mr. Diaz argues that

pursuant to La. C.Cr.P. art. 581(B)(3) and (4), despite the exercise of due

diligence, after trial he discovered “new and material evidence” that the court

reporter intentionally removed from the record, including perjured testimony by

M.B., Deputy Cornejo, Detective Donahue, Sergeant Olivier, Lieutenant Hare, and

Special Agent Terry. He claims that the original, authenticated audio recording of

the entire trial—which he avers is “newly discovered evidence”—would contain

this perjured testimony and probably result in a different verdict in the event of a

new trial. To the contrary, based on our careful review of the testimony and

evidence—none of which Mr. Diaz objected to at trial—we find that the State

carried its burden of proving beyond a reasonable doubt that Mr. Diaz was guilty

of trafficking children for sexual purposes. Accordingly, we find no error in the

trial court’s denial of Mr. Diaz’s motion for new trial.40

State’s Withholding of Exculpatory Evidence

In his third pro se assignment of error, Mr. Diaz argues he did not receive a

fair trial because the State withheld exculpatory evidence in violation of Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Louisiana’s

ethical and professional rules.41 Mr. Diaz also asserts that the State’s failure to

disclose evidence favorable to the defense violated the Sixth and Fourteenth

40 Mr. Diaz also argues that under La. C.Cr.P. art. 851(5), based on the ends of justice, he should be granted a new trial. This Court has stated that a judgment denying a motion for new trial on these grounds is unreviewable by an appellate court, which may review the grant or denial only for error of law. State v. Terrick, 03-515 (La. App. 5 Cir. 9/30/03), 857 So.2d 1153, 1161, writ denied, 03-3272 (La. 3/26/04), 871 So.2d 346. 41 Rule 3.8 of the Rules of Professional Conduct state that the prosecutor in a criminal case shall “make timely disclosure to the defense of all evidence or information known to the Prosecutor that tends to negate the guilt of the accused or mitigate the offense.” See Rules of Professional Conduct, Rule 3.8(d).

20-KA-381 39 Amendments, as well as La. C.Cr.P. arts. 23 and 729,42 resulting in a tainted

conviction that was based on testimony and evidence the State knew to be false.

In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d

215 (1063), the United States Supreme Court held that the suppression by the State

of evidence favorable to the accused after it receives a request for it violates a

defendant’s due process rights where the evidence is material to either the guilt or

punishment, without regard to the good or bad faith of the prosecutors. See also

State v. Bright, 02-2793 (La. 5/24/04), 875 So.2d 37, 41-42. The duty to disclose

is applicable even where there has been no request by the accused. United States v.

Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976). The State’s

due process duty to disclose applies to both exculpatory and impeachment

evidence. State v. Kemp, 00-2228 (La. 10/15/02), 828 So.2d 540, 545.

Evidence is “material” under Brady only if there is a reasonable probability

that the result of the proceeding would have been different if the evidence had been

disclosed to the defendant. A “reasonable probability” is one that is sufficient to

undermine confidence in the outcome. State v. Wise, 13-247 (La. App. 5 Cir.

11/19/13), 128 So.3d 1220, 1228, writ denied, 14-253 (La. 9/12/14), 147 So.3d

703. A reviewing court determining materiality must ascertain “not whether the

defendant would more likely than not have received a different verdict with the

evidence, but whether in its absence he received a fair trial, understood as a trial

42 Following his conviction and sentencing, Mr. Diaz filed a Motion for Constructive Contempt for Prosecutorial Misconduct alleging counsel for the State violated La. C.Cr.P. arts. 23 and 729, when she deliberately disobeyed the trial court’s February 11, 2020 order by not presenting him with the printed excerpts of the material downloaded from M.B.’s phone on the morning of February 12, 2020, and by knowingly allowing false evidence and testimony to go before the jury in order to obtain a verdict against him. Prior to filing his motion, however, the trial court had already granted Mr. Diaz an appeal, thereby divesting the trial court of jurisdiction to rule on Mr. Diaz’s motion for constructive contempt. See La. C.Cr.P. art. 916. In his third assignment of error, Mr. Diaz raises the same arguments set forth in that motion.

20-KA-381 40 resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434,

115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995).

The Louisiana Supreme Court has recognized three elements of a Brady

claim: (1) the evidence at issue must be favorable to the accused, either because it

is exculpatory, or because it is impeaching; (2) that evidence must have been

suppressed by the State, either willfully or inadvertently; and (3) prejudice must

have ensued. State v. Garrick, 03-137 (La. 4/14/04), 870 So.2d 990, 993.

In the case sub judice, the “exculpatory” evidence that Mr. Diaz claims the

State failed to disclose includes: (1) excerpts from a computer disc, which

contained a download of the content of the victim’s cell phone; (2) evidence of a

jail house call between Mr. Diaz and his sister that was used by the State during

rebuttal; and (3) evidence regarding a telephone call made from the Jefferson

Parish Correctional Center, wherein Mr. Diaz purportedly conveyed that he had no

knowledge of the (Kenner) robbery, but the State used the evidence of the robbery

against him at trial.43

Similar to the argument made in his previous assignment of error, Mr. Diaz

avers that counsel for the State willfully disobeyed the trial court’s February 11,

2020 order44 to provide him with printed copies of excerpts from the downloaded

content extracted from M.B.’s cell phone on the morning of February 12, 2020, so

that he could properly present his defense that day. Mr. Diaz argues that in failing

to comply with the order, counsel for the State violated La. C.Cr.P. arts. 23 and

43 It is unclear from Mr. Diaz’s brief on appeal whether he is referring to a single “jail house” call made to his sister or whether he discussed his lack of knowledge regarding the Kenner robbery in a separate call. Only one jail house call that was made by Mr. Diaz to his sister was addressed at trial, during the State’s rebuttal. 44 Mr. Diaz contends the court reporter removed from the record the bench conference wherein the trial judge purportedly issued the alleged order to the State on February 11, 2020.

20-KA-381 41 729,45 and Brady, and violated a duty owed by reason of her employment to assist

the court in the administration of justice.

Our review of the record, however, indicates that no such order was ever

issued by the trial court to counsel for the State on February 11, 2020. During a

bench conference held on that date, Mr. Diaz confirmed his intention to discuss

certain items contained on the disc during his examination of Sergeant Olivier, but

was advised by the court that the disc had not yet been admitted into evidence.

The record shows that, at that time, the parties agreed to have Sergeant Burke

authenticate the disc the following morning on February 12, 2020. The parties also

discussed Mr. Diaz calling M.B. for questioning about the contents of the cell

phone extraction. At no point during that bench conference does the record

indicate that the trial court ever ordered counsel for the State to provide Mr. Diaz

with printed copies of the cell phone extraction.46 On the morning of February 12,

2020, the State provided Mr. Diaz with a copy of the actual disc, which he

reviewed, and requested Sergeant Burke to authenticate it for admissibility

purposes. It appears that Mr. Diaz then attempted to use the disc on a laptop

during his questioning of M.B. by having her read certain messages.

Acknowledging the juror’s inability to see the evidence, the trial court

sustained the State’s objection that Mr. Diaz had failed to pose an actual question

to M.B., and had failed to lay a proper foundation as to the relevance of the cell

phone messages, and stated that until Mr. Diaz established that the information was

relevant for the jury to see, “the fact that they can’t see it is of no moment …” The

45 La. C.Cr.P. art. 23 provides, in pertinent part, that “constructive contempt includes … willful neglect or violation of duty by … a person employed … to assist the court in the administration of justice.” La. C.Cr.P. art. 729 states, in part, that if at any time prior or subsequent to final disposition the court finds that either the State or the defense has willfully failed to comply with a discovery order of the court, such failure shall be deemed to be a constructive contempt of court. See La. C.Cr.P. art. 729.5(B). 46 Mr. Diaz alleges that the court reporter intentionally removed this exchange between the trial judge, counsel for the State, and Mr. Diaz from the record.

20-KA-381 42 court then instructed Mr. Diaz that if he could show how the information was

relevant, hard copies would likely be necessary in order for the jury to see it. In

response, Mr. Diaz stated, “Well, don’t worry about it, Your Honor. I don’t have

any further questions.” At that point, Mr. Diaz’s questions to M.B. ceased.

We find that the record does not support Mr. Diaz’s contention that the State

violated La. C.Cr.P. arts. 23 or 729, or committed a Brady violation with respect to

the disc containing the downloaded information extracted from M.B.’s cell phone.

There is nothing in the record showing that the State was ordered on February 11,

2020, to provide Mr. Diaz with hard copies of the cell phone extraction, nor did he

lodge a contemporaneous objection regarding the State’s alleged constructive

contempt for failing to do so. See La. C.E. art. 103(A)(1) and La. C.Cr.P. art.

841(A). “An irregularity or error cannot be availed of after verdict unless it was

objected to at the time of its occurrence.” La. C.Cr.P. art. 841; State v. Ruiz, 06-

1755 (La. 4/11/07), 955 So.2d 81, 87 (citations omitted). The contemporaneous

objection rule applies to claims of prosecutorial misconduct such as the allegations

asserted by Mr. Diaz herein. State v. Hoffman, 9803118 (La. 4/11/00), 768 So.2d

542, 582, opinion supplemented, 00-1609 (La. 6/14/00), 768 So.2d 592, cert.

denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000). We also find that

Mr. Diaz’s contention that a Brady violation occurred is misplaced. He was, in

fact, provided with a physical copy of the disc, and the disc itself was authenticated

and admitted into evidence. He failed to lay a proper foundation for the

admissibility of the information contained on the disc, and then ceased his

questioning of M.B. regarding that information.

Mr. Diaz also contends the State’s failure to disclose the recording of Mr.

Diaz’s jailhouse call prior to trial, evidence that he contends was favorable to the

defense, was a violation of La. C.C.P. art. 729 and constituted a Brady violation.

We disagree.

20-KA-381 43 The Louisiana Supreme Court has previously held that discovery rules are

intended to eliminate unwarranted prejudice arising from surprise testimony to

permit the defense to meet the State’s case and allow proper assessment of the

strength of its evidence in preparing a defense. State v. Bradstreet, 16-80 (La.

App. 5 Cir. 6/30/16), 196 So.3d 876, 892, writ denied, 16-1567 (La. 6/5/17), 220

So.3d 752. The State has a continuing duty to disclose additional evidence which

it discovers or decides to use at trial. See La. C.Cr.P. art. 729.3. A conviction will

not be reversed on the basis of the State’s discovery violation unless prejudice is

shown. State v. Harris, 00-3459 (La. 2/26/02), 812 So.2d 612, 617.

When the evidence (in this case, the jailhouse call) is not used by the State

on direct examination, nor mentioned during the State’s opening statement, but

only offered in rebuttal to counter the direct testimony presented by the defense,

Louisiana courts have concluded that the State does not have the intent to use the

evidence at trial, and therefore, there is no violation of the discovery statutes. See

State v. Hartford, 14-643 (La. App. 4 Cir. 3/18/15), 162 So.3d 1202, 1212-14, writ

denied, 15-768 (La. 3/14/16), 189 So.3d 1065; see also State v. Amadee, 409 So.2d

1259, 1261 (La. 1982).

In State v. Hudson, 19-761 (La. App. 4 Cir. 4/22/20), 299 So.3d 131, 136, in

concluding that the State’s failure to disclose recordings of the defendant’s

jailhouse calls prior to trial was not a violation of discovery rules, the reviewing

Court applied the holding in Hartford, supra, and found the record reflected “that

the State did not intend to use the recordings in its case in chief at trial, and used

them only to rebut the defendant’s testimony that he acted in self-defense.” Id. at

137-138. Further, in response to the defendant’s contention that the jailhouse calls

constituted Brady material because they contained exculpatory statements that

were material to guilt or punishment and the State’s late disclosure during trial

compromised his ability to present a complete defense, the Court disagreed. Id. at

20-KA-381 44 138. Specifically, the Court found that the defendant failed to identify which and

how the calls or statements were exculpatory. Additionally, although the defense

was given the opportunity to use the recordings in re-direct examination of the

defendant, the defense used none of them. Lastly, the Court disagreed that the

disclosure of the recordings would have affected the preparation of the defendant’s

defense, including his decisions to testify or call other witnesses to testify. In

short, the Court found the “defendant’s speculative argument insufficient to

establish a Brady claim. Id.

Similarly, our review of the record in the instant case confirms that the State

did not use the recorded jailhouse call on direct examination nor mentioned the call

during its opening statement. The record shows that during the State’s cross-

examination of Mr. Scala, who was called as a witness by Mr. Diaz during his case

in chief, Ms. Scala denied that Mr. Diaz had dropped her off at a hotel, even after

she was confronted with a phone call Mr. Diaz had made from jail to his sister,

Candice, stating that he had dropped off a friend at a hotel and then people came to

get him. Notably, Mr. Diaz did not object to the State’s questioning of Ms. Scala

regarding the call. Later, during rebuttal, the State called Detective Guidry, the

JPSO custodian of records relative to jailhouse calls, to testify regarding a

jailhouse call that occurred on March 2, 2018, between Mr. Diaz and his sister,

Candace, and then published the call. At that time, Mr. Diaz objected on the basis

that he had no knowledge of this evidence. In response, the State argued that Mr.

Diaz’s jailhouse call was being introduced to rebut Ms. Scala’s prior testimony that

Mr. Diaz had not dropped her off at a Super 8 Motel. The trial court overruled Mr.

Diaz’s objection on the ground that call was rebuttal evidence.

We find that the State only offered the recorded jailhouse call to rebut Ms.

Scala’s testimony (and Mr. Diaz’s contention) that he was not present at the Super

8 Motel. The record does not support a finding that the State intended to use the

20-KA-381 45 jailhouse call in its case in chief. Consequently, we find no violation of the

discovery statutes. We also find that Mr. Diaz has not established a Brady

violation because he has not identified how the recorded call is exculpatory.

Moreover, to the extent Mr. Diaz alleges that Deputy Cornejo testified that counsel

for the State “received knowledge through a telephone conversation that was had

[sic] from the Jefferson Parish Correctional Center, via Securus, that Jared Diaz

didn’t have any knowledge of the robbery that was being used against him,” and

coerced him to testify falsely at trial, we find no support for these allegations in the

record. Consequently, we find no Brady violation occurred. This assignment of

error is also without merit.

Ineffective Assistance of Counsel

In his final pro se assignment of error, Mr. Diaz argues that he was denied

the right to effective assistance of counsel. Specifically, Mr. Diaz asserts the

following:

Jared Diaz contends that on September 30, 2020, 24th JDC public defender Ms. Renee Bourg stated in open court that if Jared Diaz didn’t do what she wanted him to do she would make rape allegations against him. On February 3, 2021, Ms. Renee Bourg, stated in open court that what she and the Judge done [sic] was wrong, and they needed to protect each other. Ms. Renee Bourg stated on March 17, 2021, that she was joining with the State to find Jared Diaz incompetent. Ms. Renee Bourg has violated the lawyer client privilege by providing members of the Court with information that was discussed in private. Ms. Renee Bourg has also attempted to have her clients testify against Jared Diaz and also has tried to have them cause bodily harm to Jared Diaz.

Our careful review the record shows that it does not support Mr. Diaz’s

contentions. Further, we find that Mr. Diaz has failed to properly brief his

argument concerning ineffective assistance of counsel. Under Uniform Rules–

Courts of Appeal, Rule 2–12.4(B)(4), the Court may consider as abandoned any

assignment of error or issue for review which has not been briefed. See also State

20-KA-381 46 v. Tranchant, 10-459 (La. App. 5 Cir. 11/23/10), 54 So.3d 730, writ denied, 10-

2821 (La. 4/29/11), 62 So.3d 108. Restating an assigned error in brief without

argument or citation of authority does not constitute briefing. State v. Marie, 07-

397 (La. App. 5 Cir. 11/27/07), 973 So.2d 780, 781. As to this assignment of

error, Mr. Diaz does not present legal argument and fails to cite to any legal

authority in support of his specific misconduct allegations. Accordingly, we

consider Mr. Diaz’s pro se assigned error as abandoned.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920;

State v. Oliveaux, 312 So.2d 337 (La. 1975); State v. Weiland, 556 So.2d 175 (La.

App. 5 Cir. 1990). The following matters were discovered:

24 Hour Delay in Sentencing

Louisiana C.Cr.P. art. 873 mandates a 24-hour delay between the denial of a

new trial motion and the imposition of sentence unless the defendant expressly

waives a delay provided for in this article or pleads guilty, in which case sentence

may be imposed immediately. In the present case, the denial of defendant’s

motion for new trial and the imposition of his original sentence occurred on March

2, 2020. As a general rule, when a defendant challenges a non-mandatory sentence

and the delay is not waived, the defendant’s sentence must be vacated and the

matter remanded for resentencing. State v. Bibbins, 13-875 (La. App. 5 Cir.

4/9/14), 140 So.3d 153, 169, writs denied, 14-994 (La. 12/8/14), 153 So.3d 439

and 14-1015 (La. 12/8/14), 153 So.3d 440. However, when the original sentence

has been set aside in a habitual offender proceeding, as was the case here, the trial

court’s failure to observe the mandatory 24-hour delay required by La. C.Cr.P. art.

873 is harmless. See State v. McCloud, 04-1112 (La. App. 5 Cir. 3/29/05), 901

So.2d 498, 505, writ denied, 05-1450 (La. 1/13/06), 920 So.2d 235; State v. Davis,

20-KA-381 47 00-278 (La. App. 5 Cir. 8/29/00), 768 So.2d 201, 214, writ denied, 00-2730 (La.

8/31/01), 795 So.2d 1205.

Multiple Offender Commitment Order

While the transcript of the multiple offender proceedings reflects the trial

court ordered Mr. Diaz’s enhanced sentence to be served without benefit of

probation or suspension of sentence, the multiple offender commitment order does

not recite these restrictions. At sentencing, Mr. Diaz was not given probation, and

his sentence was not suspended. Where there is a discrepancy between the

transcript and the minute entry, the transcript generally prevails. State v. Lynch,

441 So.2d 732, 734 (La. 1983). Accordingly, we remand the matter to the trial

court with instructions to correct the multiple offender commitment order to

accurately reflect that Mr. Diaz’s sentence is to be served without benefit of

probation or suspension of sentence. We direct the Clerk of Court for the 24th

Judicial District Court to transmit the original of the corrected multiple offender

commitment order to the appropriate authorities in accordance with La. C.Cr.P. art.

892(B)(2) and to the Department of Corrections’ legal department. See State v.

Garcie, supra, 242 So.3d at 1290.

DECREE

For the foregoing reasons, we affirm Mr. Diaz’s conviction, multiple

offender adjudication, and enhanced sentence, and we remand the matter for

correction of an error patent as noted herein.

CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR CORRECTION OF ERROR PATENT

20-KA-381 48 STATE OF LOUISIANA NO. 20-KA-381

WICKER, J., DISSENTS WITH REASONS

I respectfully dissent from the majority’s decision to affirm defendant’s

sixty-five year enhanced sentence as a second felony offender under La. R.S.

15:529.1. For the following reasons, it is my opinion that the enhanced sentence

imposed is constitutionally excessive and that a lesser sentence would meet all of

the societal goals of incarceration for this defendant without imposing an undue

financial burden on the state.

Although defendant’s sixty-five year sentence is within the statutory limits

provided by La. R.S. 15:529.1, the imposition of a sentence within the statutory

limits may still violate a defendant’s constitutional right against excessive

punishment. State v. Smith, 01–2574 (La. 1/14/03), 839 So.2d 1, 4. In

considering whether the trial court abused its discretion in sentencing a

defendant, a reviewing court should consider the nature of the crime, the nature

and background of the offender, and the sentences imposed for similar crimes by

other courts.1 State v. Horne, 11–204 (La. App. 5 Cir. 2/14/12), 88 So.3d at 569.

There is no question that the nature of the crime, trafficking children for

sexual purposes under La. R.S. 14:46.3, is horrific. As pointed out by the

majority, the evidence at trial reflects that defendant, “preyed upon and took

advantage of a young, 16-year-old girl, M.B., who was vulnerable, had no place

1 As pointed out by the majority, there are no cases to provide sentencing guidance for an enhanced sentence for trafficking children for sexual purposes where the predicate crime to support the multiple bill is a nonviolent offense.

20-KA-381 1 to go, and believed she had no alternative but to rely on him. The evidence

showed that he groomed her, isolated her, and coerced her into selling her body

for his sole benefit.” The evidence further demonstrated that defendant

“provided drugs to M.B., and threatened to kill her with a gun and throw her in a

river, and/or hurt her mother were M.B. ever to escape him.” A conviction for

such a serious crime warrants a significant term of imprisonment and it is my

opinion that the trial judge was within his discretion to sentence defendant to the

maximum term of fifty years imprisonment for that conviction.

However, considering the background of this offender and the predicate

crime used to support defendant’s multiple offender conviction, it is my opinion

that defendant’s enhanced sentence under La. R.S. 15:529.1 is constitutionally

excessive. In support of the multiple offender bill, the State relied upon

defendant’s prior conviction for distribution of marijuana—a non-violent offense

committed by defendant at the age of twenty-four. The Louisiana Supreme

Court has stated that “the classification of a defendant’s instant or prior offenses

as non-violent should not be discounted” and that a court may consider the

violent or non-violent nature of defendant’s prior crimes when reviewing a

sentence for excessiveness. State v. Johnson, 97–1906 (La. 3/4/98), 709 So.2d

672, 676.

Given the classification of defendant’s conviction for trafficking children

for a sexual purpose as a violent offense and his adjudication as a second felony

offender under La. R.S. 15:529.1, defendant will not be eligible for parole under

the requirements set forth in La. R.S. 15:574.42 until he serves 75% of his sixty-

five year sentence. The record reflects that defendant was arrested on February

2 The provisions of La. R.S. 15:574.4 were amended during the date range of the underlying offense provided in the bill of information. The amendment, however, is not relevant to this defendant’s parole eligibility calculation.

20-KA-381 2 28, 2018, and appears to have remained incarcerated since that date. Therefore,

defendant’s sixty-five year sentence as a multiple offender in this case renders

him eligible for parole at the age of 77, after serving 48.75 years of his sentence.

This effective life sentence imposes an undue burden on the taxpayers of

the state, who must feed, house, and clothe this defendant for life. As this

defendant ages, these costs will only increase due to the need for geriatric health

treatments. See State v. Bruce, 11-991 (La. App. 5 Cir. 10/30/12), 102 So.3d

1029, 1036, writ denied, 12-2568 (La. 4/26/13), 112 So.3d 839; State v.

Hayes, 97–1526 (La. App. 1 Cir. 6/25/99), 739 So.2d 301, 303, writ denied, 99–

2136 (La. 6/16/00), 764 So.2d 955, and State v. Burns, 97–1553 (La. App. 4 Cir.

11/10/98), 723 So.2d 1013, 1020, writ denied, 98–3054 (La. 4/1/99), 741 So.2d

1282.

Considering the nature and background of this offender as well as the

underlying non-violent crime relied upon to support the multiple offender bill in

this case, it is my opinion that a fifty-year sentence—allowing defendant to be

parole eligible at the age of 65—would meet all of the societal goals of

incarceration for this defendant without imposing an undue financial burden on the

state. See Bruce, supra.

20-KA-381 3 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN S. BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

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