State of Louisiana Versus Cody Labranche

STATE OF LOUISIANA NO. 24-K-518

VERSUS FIFTH CIRCUIT

CODY LABRANCHE COURT OF APPEAL

STATE OF LOUISIANA

November 06, 2024

Susan Buchholz
Chief Deputy Clerk

IN RE CODY LABRANCHE

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE
ELLEN SHIRER KOVACH, DIVISION "K", NUMBER 22-692

Panel composed of Judges Susan M. Chehardy,
Scott U. Schlegel, and Timothy S. Marcel

WRIT DENIED; STAY DENIED

Defendant, Cody Labranche, seeks review of the trial court’s November 4,

2024 ruling denying his motion to continue the jury trial set in this matter which

began on November 4, 2024. Defendant argues that on Friday, November 1, 2024,

a court holiday, the State “dumped” on the defendant a Cellbrite1 report, and that

defendant needs time to hire his own expert. The State responds that it has already

agreed to limit its evidence to 53 particularized items in the complained-of

Cellebrite report, and that defendant has not shown a particularized need to hire an

expert to assist in “reviewing” the Cellebrite report.

Both defendant and the State requested that we review the transcript of the

November 4, 2024 hearing. The transcript was filed with this court on November

6, 2024.

1
Although defendant refers to the “Cellbrite” report, it appears that the more common spelling is Cellebrite.

24-K-518

The transcript shows that during the hearing, defendant argued that the

Cellebrite Reports are expert in nature and include extensive information about the

contents of phones, including videos, audios, text messages, and different apps.

Defendant contends it is unfair to dump the information so close to the trial

without sufficient time to obtain an expert. The State responded that the Cellebrite

report is a “plug and play” that has been in use for more than twelve years without

requiring expertise to do the actual extraction and download. The State further

contends that there are multiple Cellebrite extractions that were turned over in

initial discovery. Furthermore, the State alleges that a majority of the evidence it

intends to use is duplicative.

The trial court considered and denied defendant’s arguments, finding that the

report required no interpretation of data, that extraction evidence is allowed “all the

time,” and that the majority of the Cellebrite extractions were turned over.

According to Code of Criminal Procedure art. 712, “[a] motion for

continuance, if timely filed, may be granted, in the discretion of the court, in any

case if there is good ground therefor.” The decision of whether to grant or refuse a

motion for a continuance rests within the sound discretion of the trial judge and a

reviewing court will not disturb such a determination absent clear abuse of

discretion. State v. Perilloux, 21-448 (La. App. 5 Cir. 12/20/23), 378 So.3d 280,

314, writ denied, 24-104 (La. 9/4/24), 391 So.3d 1055; State v. Johnson, 19-547

(La. App. 5 Cir. 9/9/20), 303 So.3d 381, 390, writ denied, 21-017 (La. 4/20/21),

313 So.3d 1257.

Defendant has not shown that he needs an expert to review and provide him

a report and perhaps give witness testimony. In United States v. Williams, 83 F.4th

994, 998 (5th Cir. 2023), the United States Court of Appeals for the Fifth Circuit

considered whether expert testimony was necessary to introduce a Cellebrite

report. The Fifth Circuit recognized that the police used a Cellebrite device to

2

copy the information off defendant’s mobile phones, and “an investigator merely

plugged each phone into [the Cellebrite device] and ran the program. The program

pulled out the user data—including any messages, videos, or emails sent, received,

or recently deleted—along with the apps used on the phone”. Id. at 995. The Fifth

Circuit concluded that “[w]ithout a showing of specialized knowledge, the mere

use and understanding of a Cellebrite extract at trial is insufficient to require an

expert.” Id. at 998.

Thus, on the showing made, we cannot say that the trial court abused its

discretion in denying defendant’s motion to continue trial. For these reasons, we

deny defendant’s emergency writ application and his motion to stay the

proceedings.

Gretna, Louisiana, this 6th day of November, 2024.

SUS
SMC
TSM

3

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL 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

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 11/06/2024 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

24-K-518
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable Ellen Shirer Kovach (DISTRICT JUDGE)
Darren A. Allemand (Respondent) Thomas J. Butler (Respondent)
Mark D. Plaisance (Relator)

MAILED
Remy V. Starns (Relator) Paul C. Fleming, Jr. (Relator) Marcus J. Plaisance (Relator)
Attorney at Law Cesar J. Vazquez (Relator) Attorney at Law
301 Main Street Letita J. Parker-Davis (Relator) Post Office Box 1123
Suite 700 Attorneys at Law Prairieville, LA 70769
Baton Rouge, LA 70825 848 Second Street
Gretna, LA 70053
Honorable Paul D. Connick, Jr.
(Respondent)
District Attorney
Twenty-Fourth Judicial District
200 Derbigny Street
Gretna, LA 70053