State of Louisiana Versus Gary L. Workman

STATE OF LOUISIANA NO. 24-KH-405

VERSUS FIFTH CIRCUIT

GARY L. WORKMAN COURT OF APPEAL

STATE OF LOUISIANA

September 23, 2024

Linda Wiseman
First Deputy Clerk

IN RE GARY L. WORKMAN

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE JOHN E. LEBLANC,
DIVISION "D", NUMBER 12-2204

Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and Timothy S. Marcel

WRIT DENIED

Relator, Gary L. Workman, seeks this Court’s supervisory review of the trial
court’s July 31, 2024 ruling which denied his application for post-conviction relief
(“APCR”). For the following reasons, we find no error in the trial court’s ruling,
and thus the relief requested in the instant writ application is denied.

FACTS AND PROCEDURAL BACKGROUND

On February 27, 2014, a jury found relator guilty of attempted aggravated
rape upon a twelve-year-old child (count one), distribution of pornography of a
juvenile under the age of thirteen (counts two, three, and four), and possession of
pornography involving juveniles under the age of thirteen (count five). On March
10, 2014, the trial court sentenced relator to fifteen years imprisonment at hard
labor as to count one; ten years imprisonment at hard labor each as to counts two,
three, and four; and five years imprisonment at hard labor as to count five. The
trial court also ordered the sentences on counts one, two, three, and four to run
consecutively to each other and concurrently with the sentence imposed on count
five. The trial court further ordered the sentences on all counts to be served
without the benefit of probation, parole, or suspension of sentence.

On April 15, 2015, this Court affirmed relator’s convictions and sentences.
State v. Workman, 14-559 (La. App. 5 Cir. 4/15/15), 170 So.3d 279. On March 24,
2016, the Louisiana Supreme Court denied relator’s writ application. State v.
Workman, 15-909 (La. 3/24/16), 190 So.3d 1189.

On July 24, 2024, relator filed this APCR with the district court. In it,
relator made a claim of newly discovered, material evidence that the State
allegedly withheld in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,
10 L.Ed.2d 215 (1963). Specifically, at trial, relator testified that he received
unsolicited photos of children from an individual using the code name “Koala.”
According to relator, he recently discovered that the FBI was involved in
“Operation Koala,” an “international sting operation” targeting a child
pornography network several years before the instant offenses occurred, but the
FBI agent involved in relator’s case, Jamie Hall, and the State, failed to reveal the
alleged FBI and Koala “connection” to his own case. In relator’s view, such a
connection would have bolstered his entrapment defense. Relator also argued that
a report from a computer forensics expert showed that Agent Hall made material
and intentional misrepresentations to obtain a federal search warrant of relator’s
home. On July 31, 2024, the trial court denied relief, stating:

The court has reviewed the pleadings and exhibits, as well as the
record. Upon review, the court finds that the defendant fails to
establish that he is entitled to bring a third application. He fails to
indicate any newly discovered evidence or to suggest that he is
entitled to escape the mandatory time bar of La. C.Cr.P. art. 930.8.
He also fails to assert, much less prove, a basis for escaping the
mandatory bars against repetitive and successive applications
contained in La. C.Cr.P. art. 930.4. Furthermore, under La. C.Cr.P.
art. 930.2, the petitioner in an application for post-conviction relief
shall have the burden of proving that relief should be granted. The
defendant fails to meet this burden.
On August 28, 2024, relator’s timely writ application requesting review was
filed with this Court. In it, relator re-urges his claims of a newly discovered Brady
violation and an invalid search warrant. Relator also complains that the trial court
did not order the State to file a response to his APCR.

ANALYSIS

La. C.Cr.P. art. 930.8(A)(1) allows a defendant to file an APCR more than
two years after his conviction and sentence become final where “[t]he application
alleges, and the petitioner proves or the state admits, that the facts upon which the
claim is predicated were not known to the petitioner or his prior attorneys.”

In support of relator’s claim of newly discovered evidence of a Brady
violation, relator submitted copies of two news articles, both dated November 5,
2007, describing Operation Koala, an investigation of a global child pornography
network conducted by Europol, a European police agency. Relator also includes
the first two pages from United States v. Campbell, 738 F.Supp.2d 960 (D. Neb.
2010), a 2010 federal decision involving a defendant who purchased child
pornography videos from a website under investigation by Europol in 2005 and
2006 as part of Operation Koala.

At trial, relator testified that in 2012, he was conducting research on human
behavior when he responded to a “chat” from someone using the moniker “Koala
211” or “215” from New Zealand. Koala sent him images containing child
pornography, which he claimed he tried to delete. However, the images did not
delete from his computer, and were sent from his computer to a person named
“Savage,” who had responded to relator’s advertisement on Craigslist seeking to
meet “someone’s daughter.” Relator denied knowing how these images ended up
being sent from his computer to “Savage,” who was actually a police investigator.

Relator now claims that his newly discovered evidence of what appears to be
the FBI’s involvement in Operation Koala would have bolstered his entrapment
defense by showing that the photographs sent to him by Koala were supplied by
“the government, or a government informant.”1

1
On appeal, this Court rejected relator’s contention of entrapment, Workman, 14-559,
170 So.3d at 291, finding:
Considering the evidence presented at trial, specifically the officers’
testimony, and the defendant-led conversations during which he alone requested a
meeting with a twelve-year-old girl to have sex with, it would not have been
unreasonable for the jury to conclude that defendant was not entrapped, thus,
eliminating the need to consider the second prong of the entrapment defense-
predisposition.
Moreover, in returning the guilty verdict, the jury obviously rejected the
entrapment defense. The question of whether a government agent induced an
innocent person into committing a crime is a jury question. State v. Hardy, 98-25,
p. 9 (La. App. 5 Cir. 5/13/98), 715 So.2d 466, 471. Furthermore, the trier of fact
determines the credibility of witnesses, and within the bounds of rationality, may
accept or reject the testimony. State v. Deruise, 98-0541, p. 26 (La. 4/3/01), 802
So.2d 1224, 1243, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208
(2001). It is not the function of the appellate court to assess credibility or reweigh
the evidence. Bates, 03-352 at 7, 853 So.2d at 75.
Agent Hall merely provided an opportunity in this case for defendant to
commit a crime that he was obviously predisposed to commit. Thus, we
determine that a rational trier of fact could have found defendant failed to
establish by a preponderance of the evidence that he was induced by a
government agent to commit the crimes for which he was convicted.

As an initial matter, relator provides no explanation for how the 2007 news
articles and 2010 Campbell opinion qualify as newly discovered evidence given
that he was convicted in 2014, nor does relator explain why he only obtained these
materials eight years after his convictions and sentences became final.2 At any
rate, relator’s supporting documentation falls short of his post-conviction burden of
proof in showing that Koala was actually an FBI operative involved in Operation
Koala,3 an investigation that ended in 2007, approximately five years before Koala
sent him the photos in the instant case. See La. C.Cr.P. art. 930.2.4 First, there is
no mention of FBI involvement in either article. According to the Campbell
opinion, the FBI’s involvement in that case only began after the agency received a
report from Europol. Furthermore, with regard to the Europol investigation, Koala
referred to the name of the operation, not a code name used by investigators.
Additionally, it appears Operation Koala focused on the distribution of “tailor-
made” videos of child pornography ordered from a website, whereas in the instant
case, relator claimed Koala sent the unsolicited photographs to him following their
conversation in a chat room. As such, at most, the purported Koala connections
appear to be a coincidence rather than newly discovered evidence of a Brady
violation. Consequently, relator’s claim, lacking support as a claim of newly
discovered evidence, is untimely. See La. C.Cr.P. art. 930.8(A), which provides in
pertinent part: “No application for post-conviction relief including applications
which seek an out-of-time appeal, shall be considered if it is filed more than two
years after the judgment of conviction and sentence has become final.”

Next, relator maintains that Agent Hall misrepresented the facts in his
affidavit for a federal search warrant when he stated that relator sent three
photographs on April 5, 2012. According to relator, the photographs were actually
e-mailed on April 7, 2012.

However, in this claim, relator does not appear to rely on newly discovered
evidence, but rather a copy of a report dated November 7, 2013 from a computer
forensics expert retained by defense counsel, but who did not testify at trial. In
fact, relator has submitted this same report in two prior APCRs in support of his

2
See State v. Workman, 15-909 (La. 3/24/16), 190 So.3d 1189.
3
According to the news articles provided, the Europol investigation was named
Operation Koala based on an arrest made by Australian police of an Italian man selling videos of
child pornography from a website.
4
La. C.Cr.P. art. 930.2 provides: “The petitioner in an application for post-conviction
relief shall have the burden of proving that relief should be granted.”

claim of ineffective assistance of counsel, which, in both instances, this Court
found lacked merit. See State v. Workman, 22-KH-9 (La. App. 5 Cir. 3/3/22)
(unpublished writ disposition), writ denied, 22-546 (La. 9/20/22), 346 So.3d 289;
State v. Workman, 17-KH-134 (La. App. 5 Cir. 4/4/17) (unpublished writ
disposition), writ not considered, State ex rel. Workman v. State, 17-985 (La.
10/29/18), 254 So.3d 697. Furthermore, a defendant’s late realization that an error
may have occurred at trial does not qualify as discovery of a new fact for purposes
of La. C.Cr.P. art. 930.8(A)’s exception. State v. Parker, 98-256 (La. 5/8/98), 711
So.2d 694, 695 (per curiam). Accordingly, relator’s claim challenging the search
warrant is also barred as untimely under La. C.Cr.P. art. 930.8.

Finally, relator appears to argue that the trial court erred in ruling on his
APCR without ordering the State to respond. Under La. C.Cr.P. art. 927, the trial
judge is not required to order the district attorney to file an answer before
summarily disposing of a claim, if it lacks merit on its face. See La. C.Cr.P. art.
928; State v. Readoux, 614 So.2d 175, 179 (La. App. 3 Cir. 1993). The trial court
found on the face of the application that the claims were without merit, a ruling
with which we have found no error, as explained above. Consequently, the trial
court did not err in summarily disposing of the claims in the APCR.

CONCLUSION

For the foregoing reasons, we find no error in the ruling of the trial court.
Accordingly, the relief requested in the instant writ application is denied.

Gretna, Louisiana, this 23rd day of September, 2024.

JGG
FHW
TSM

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 09/23/2024 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-KH-405
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable John E. LeBlanc (DISTRICT JUDGE)
Thomas J. Butler (Respondent)

MAILED
Gary L. Workman #622062 (Relator)
Dixon Correctional Institute
Post Office Box 788
Jackson, LA 70748