NEW ORLEANS — A federal judge has ruled that recordings of Grammy-winning trumpeter Irvin Mayfield and his partner Ronald Markham, secretly recorded by a Louisiana auditor, can be used by prosecutors in Mayfield and Markham’s conspiracy and money laundering trial.

Mayfield and Markham had tried to get the recordings suppressed. They each face 23 felony counts, including conspiracy, money laundering, fraud and obstruction, for transferring $1.4 million in donations to the New Orleans Public Library support foundation, where they both served as president, to the jazz orchestra Mayfield founded and which paid them each six-figure salaries.

Their trial, which has been delayed several times, is now scheduled for Jan. 21.

Federal prosecutors allege that Mayfield and Markham falsely claimed that the library donations would go to building the New Orleans Jazz Market in Central City, and instead used the funds to pay orchestra expenses, their own salaries and for Mayfield’s luxurious trips to swanky hotels.

Judge Jay Zainey made the decision Tuesday following months of court filings and after weighing evidence during a long day of testimony Oct. 2.

Mayfield and Markham argued that a legislative auditor investigator, Brent McDougall, was essentially acting as an agent of the federal government and should have disclosed his intent to help the criminal investigation when he interviewed Markham twice and Mayfield once. They claimed McDougall misrepresented himself and tricked the duo into speaking to him so he could feed the recordings to the FBI.

McDougall was investigating the New Orleans Jazz Orchestra’s use of public funds it had received from the city and state, which is within his purview. He interviewed Markham twice and suggested he wasn’t looking at the private funds the orchestra had received from the Library Foundation. Markham’s attorney argued her client wouldn’t have spoken to McDougall if he had known the auditor would be helping a federal criminal investigation into the use of the library funds.

But Zainey said the money was so comingled that it was also within the legislative auditor’s authority to review the money the Jazz Orchestra received from the Library Foundation. McDougall did that in an Oct. 19, 2017, interview with Markham by referencing comments Markham made to WWL-TV when the station broke the story in 2015.

“I understand the Library Foundation money is not public, it was not something that we were looking at,” McDougall said to Markham, according to a transcript. “But, in just reading some of the news articles that came out, you had mentioned, I think it was in the interview you did with (David) Hammer . . . You had talked about some of the Library Foundation money being used at the Jazz Market. What was that used on?”

Markham’s argument that he wouldn’t have answered the question if he had known McDougall was giving his answers to the FBI, especially at that point in October 2017, seemed to ring hollow to Zainey.

“By the time of the second interview with McDougall, Markham had already responded to the grand jury subpoena,” Zainey wrote in his ruling. “All the while a tenacious investigative reporter had been publishing articles about Defendants’ activities with NOJO and the NOPLF. It is undisputed that the agents did not inform Markham that he was a target of the federal investigation, but Markham is not an unsophisticated individual.”

McDougall took the stand Oct. 2 and admitted he wasn’t truthful when he initially told Markham in 2016 that he didn’t know why he was asked to audit the Jazz Orchestra, when in fact he knew it was based on a complaint from the Metropolitan Crime Commission. But Zainey found that was not a “material” misrepresentation that would have caused Markham to speak with McDougall under false pretenses.

McDougall also assured Markham his audit work would be kept confidential, when he knew it would likely be subpoenaed by the FBI. It soon was, but Zainey said McDougall’s statement was “incomplete but not untruthful.”

Zainey expressed dismay from the bench last month when he learned McDougall had cold-called Mayfield in November 2017, when it was clear that Mayfield was the target of a criminal investigation, and didn’t inform the musician he was being recorded.

But, again, the judge found McDougall didn’t make any material misrepresentations during the call, and said he was only duplicitous in his “lack of candor” with Mayfield and by acting friendly when he knew he would be feeding the call to the FBI.

“McDougall had no duty to disclose to Mayfield that information obtained during the LLA audit would be shared with the Government,” Zainey wrote. “And McDougall had no duty to counsel Mayfield regarding the perils of speaking to anyone while under federal investigation.”

Mayfield’s attorney, Public Defender Claude Kelly, said he was disappointed in the ruling, but was glad that Zainey called the secret recordings “odious” and “disdainful.”

“The court used pretty strong language calling out the state actors,” Kelly said. “I certainly respect the judge’s ruling.”

What’s more, Kelly said the recordings wouldn’t adversely affect his defense of Mayfield.

“I don’t have any problem with anything Irvin said in the recording,” he said.

Markham's attorney, Sara Johnson, declined to comment.

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