Legal experts find timing of NOAH indictment puzzling

Perhaps the most surprising aspect of the federal indictment handed down Thursday against former NOAH director Stacey Jackson was that it took so long.

After federal investigators opened with a high-profile raid in August 2008 in the wake of allegations of inside dealing between Jackson and the contractors in the city-funded home-gutting program she ran, things went quiet until March 2012, when charges were filed against four contractors and one of Jackson’s subordinates. All five quickly made deals with the government, in which they identified Jackson as the mastermind in a kickback scheme. That seemed to set the stage for a slam-dunk case against Jackson.

But it wasn’t until Thursday that prosecutors from acting U.S. Attorney Dana Boente’s office secured a grand-jury indictment. It was the last possible day they could have filed three of the four charges — had they waited until Friday, those charges would have prescribed, or run past the five-year statute of limitations.

What’s more, one of those three charges — a conspiracy count — outlines 11 specific actions Jackson allegedly took in committing her crime, and 10 of them occurred more than five years ago. The oldest of them date to October 2005. But under federal law, a conspiracy charge may incorporate various misdeeds outside the statute of limitations, provided the most recent act was within the five-year window.

Of the four counts Jackson faces, the charge of obstruction of justice is the only one that makes references to any act that occurred after June 6, 2008. It alleges she engaged in an attempted cover up in August 2008.

The 11th-hour nature of the indictment surprised courthouse watchers, given that federal prosecutors tend to avoid such close brushes with the statute of limitations. In a recent high-profile case, for instance, former Mayor Ray Nagin was indicted a couple of weeks before time ran out on one of the charges he faces.

“Let me put it this way: A prosecutor never wants to be in the situation of giving a defendant a potential defense separate from the facts of the case,” said Shaun Clarke, a former federal prosecutor. “So this is certainly not an optimal situation for the government. It’s a situation no prosecutor wants to be in.”

“It’s very unusual for the government to wait until what is arguably the last possible day to ask for an indictment,” said former U.S. Attorney Harry Rosenberg. “When you’re working in the U.S. Attorney’s office, you always try to avoid any possible defense, and one of the obvious defenses is whether you’re within the statutory time lines.”

The indictment against Jackson contains no allegations that weren’t spelled out in the plea deals secured last year, making the delay more difficult to understand.

“It’s hard to know whether there were negotiations for a plea agreement that caused the government to have to scurry around at the last minute. But the facts in this case have been percolating around for a long time.,” Rosenberg said. “I guess what her lawyer is going to do is explore whether the government left the percolator on a little too long.”

Eddie Castaing, Jackson’s lawyer, said there was never a plea deal in the works. Jackson cooperated throughout the probe, even submitting to a handwriting analysis, he said, and she has made no effort to leave town. He said he will aggressively explore the possibility of getting the indictment quashed on the grounds that the government ran out the clock.

“It wasn’t like we were stringing them out with a plea that fell through,” he said. “We are going to be looking into whether the government filed timely, and why they waited until June 8, 2013, to do this.”

But both Clarke and Rosenberg cautioned that while the government’s timing was puzzling, judges tend to be reluctant to throw out cases on what amount to technical grounds.

“There’s no doubt the defendant has plausible arguments here,” Clarke said. “But it’s very difficult for the defendant to meet the bar” for an indictment to be quashed.

A key question may revolve around the final acts in the conspiracy alleged by the government. The indictment says that on May 26, 2008, Jackson wrote a NOAH check for $19,528 to contractor Earl Myers, and that “on or about June 6, 2008,” she had Myers pay a landscaper $3,000 from those proceeds for work done to Jackson’s mother’s home. Also “on our about” that date, Myers allegedly made out a check for $4,000 to cash, and gave it to Jackson.

If those latter two actions occurred before June 6, 2008 — or the government can’t prove when they happened, or that they happened — three of the four charges could well be thrown out.

“A question for the court is whether any of the overt acts can be dismissed, or whether there’s too much piggybacking here for the court to accept,” Rosenberg said.

“The question for the folks at 500 Poydras is why were you waiting until the 11th hour and 59th minute to seek this indictment?”

Through a spokeswoman, Boente declined to comment on the timing of the indictment.