United States v. Kenneth Bowen ( 2015 )

Case: 13-31078 Document: 00513162268 Page: 1 Date Filed: 08/20/2015
REVISED August 20, 2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-31078 FILED
August 18, 2015
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellant
v.
KENNETH BOWEN; ROBERT GISEVIUS; ROBERT FAULCON;
ANTHONY VALLAVASO; ARTHUR KAUFMAN,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
Before JONES, CLEMENT, and PRADO, Circuit Judges.
EDITH H. JONES, Circuit Judge:
In the anarchy following Hurricane Katrina, a group of heavily armed
New Orleans police officers were dispatched to the Danziger Bridge in response
to an emergency call reporting shots being fired at police. There, amid chaos,
they shot and killed two unarmed men, one of them developmentally disabled,
and wounded four other unarmed civilians. The police then allegedly
orchestrated a cover-up to deny what happened. Some of those involved were
tried by the state, but a mistrial was ordered. The federal government took
over the prosecution and has also bungled it. Five former officers have been
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convicted of serious crimes and received lengthy sentences. Yet they appear in
this court as Appellees, and the federal government as the Appellant, because
the district court granted a new trial.
The reasons for granting a new trial are novel and extraordinary. No
less than three high-ranking federal prosecutors are known to have been
posting online, anonymous comments to newspaper articles about the case
throughout its duration. The government makes no attempt to justify the
prosecutors’ ethical lapses, which the court described as having created an
“online 21st century carnival atmosphere.” Not only that, but the government
inadequately investigated and substantially delayed the ferreting out of
information about its in-house contributors to the anonymous postings. The
district court also found that cooperating defendants called to testify by the
government lied, an FBI agent overstepped, defense witnesses were
intimidated from testifying, and inexplicably gross sentencing disparities
resulted from the government’s plea bargains and charging practices.
Like the district court, we are well aware of our duty normally to affirm
convictions that are tainted only by harmless error. In this extraordinary case,
however, harmless error cannot even be evaluated because the full
consequences of the federal prosecutors’ misconduct remain uncertain after
less-than-definitive DOJ internal investigations. The trial, in any event, was
permeated by the cumulative effect of the additional irregularities found by
the district court. We conclude that the grant of a new trial was not an abuse
of the district court’s discretion.
The following discussion cannot be fully understood without reference to
the district court’s lengthy, comprehensive, and careful opinions in which it
evaluated the prosecutorial misconduct as it was revealed to the district court
and made significant findings of fact on which we rely. This opinion
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summarizes only the highlights of those findings. See United States v. Bowen
(December Order), No. 10-204, 2013 WL 6531577 (E.D. La. Dec. 12, 2013);
United States v. Bowen (September Order), 969 F. Supp. 2d 546 (E.D. La. 2013);
United States v. Bowen, (November Order), 969 F. Supp. 2d 518 (E.D. La. 2012).
BACKGROUND
A federal grand jury returned a 25-count indictment against former New
Orleans Police Department (“NOPD”) officers Kenneth Bowen, Robert
Gisevius, Robert Faulcon, Anthony Villavaso, and Arthur “Archie” Kaufman
for their roles in the Danziger Bridge shootings and ensuing alleged cover-up.
The indictment charged defendants with civil rights, firearms, conspiracy, and
obstruction of justice offenses; only Faulcon was indicted for actually making
a fatal shot. 1
Several other former police officers indicted at the same time pled guilty,
and most testified at trial for the government. Despite their egregious
behavior at the Danziger Bridge, the cooperating defendants received much
lighter sentences because the government agreed not to charge a series of
firearms offenses that carry substantial minimum required, consecutive
sentences.
Emotions ran high as the prosecution progressed. Local news coverage
of the impending federal indictments was punctuated by press leaks “from
unnamed sources” that tended to favor the government. One cooperating
defendant, Lehrmann, signed a confidential plea agreement, and a magistrate
judge sealed the Information against him. One day before Lehrmann was
scheduled to enter the plea in open court, the Associated Press and the New
Orleans Times-Picayune, the local paper of record, published articles
Another defendant’s case was severed and separately tried. See United States v.
1
Dugue, ___F.3d ___.
3
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announcing that fact. The district court ordered the government to attempt to
find the leak, but the order bore no fruit.
Concomitantly, commenters on the website for the New Orleans Times
Picayune vigorously debated the significance of the case and the guilt of the
individual perpetrators and the entire New Orleans Police Department. The
indictments were handed down on July 12, 2010, the trial occurred over a two
week period from late June to early July 2011, and the defendants were found
guilty on nearly all counts. There is no dispute that the district court
conducted a thorough and conscientious jury voir dire based on the information
known at the time. 2
During the interim between the verdict and sentencing, events reflecting
shocking breaches of prosecutorial ethics were revealed and then compounded
by further breaches. To make a very long story short, the district court was
led on a “legal odyssey” by the government that began in March 2012 when
another target of federal investigation in New Orleans discovered that a high-
ranking Assistant United States Attorney, Senior Trial Counsel Sal Perricone,
had been posting comments to Nola.com under multiple assumed names. 3
Perricone’s comments frequently involved other matters pending in the United
States Attorney’s Office (“USAO”) and were inflammatory, highly opinionated,
and pro-prosecution. Perricone’s comments were soon also tied to the Danziger
Bridge prosecutions and were shown to have begun well before the indictments
and continued through trial. He castigated the defendants and their lawyers
and repeatedly chastised the NOPD as a fish “rotten from the head down.”
2 Post-trial, the defendants filed an initial motion for new trial within a month, the
issues in which are not relevant here.
3Perricone’s and later First United States Attorney and Chief of the Office’s Criminal
Division Jan Mann’s identities were uncovered by forensic comparison of their characteristic
writing styles in the online comments and in court filings. The forensic expert in question
had previously assisted the FBI in identifying the Unabomber.
4
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Within ten days of the March 2012 revelation of Perricone’s comments, he
resigned as an AUSA, and then-United States Attorney Jim Letten issued a
press release attempting to confine any online misconduct to Perricone alone.
Prompted by the revelation of Perricone’s comments, the defendants
moved for a new trial based on the commenting and repeated press leaks that,
they contended, had inflamed public opinion against them. In addition to the
prejudicial atmosphere, they charged that the government induced coerced
guilty pleas and procured false testimony to secure convictions at any cost.
The district court’s first hearing on these allegations occurred in June
2012. At the hearing, United States Attorney Letten was flanked by his First
Assistant United States Attorney and Chief of the Office’s Criminal Division
Jan Mann as he promised “gospel truth” that no one else had commented on
stories related to pending cases. 4 Additionally, the DOJ’s chief prosecutor in
this case, Barbara Bernstein, represented to the district court that no member
of “the trial team” had commented online. The district court acutely observed
that its concern about leaks and publicity was not limited to the “team” but
extended to all of the federal government. The district court repeatedly
expressed skepticism that a new trial would be required, but it ordered the
USAO to conduct two investigations. The first asked the government to reveal
who had leaked the Lohman guilty plea to the press. The second, responsive
to the defendants’ claims about online activity, was to verify that only
Perricone had publicly commented about the case and to catalog the comments
chronologically.
4 Letten averred: “In terms of Perricone, Judge, I will tell you right now on the record
that . . . neither I, nor Jan Mann, nor people in positions of authority in our office, to my
knowledge did not have any knowledge of, nor did we authorize, nor did we procure or have
any knowledge of Sal Perricone anonymously posting comments about cases or anything like
that whatsoever until we learned about it in the filing. That is Gospel truth.”
5
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Jan Mann was tasked by Letten to conduct the investigations within the
New Orleans office. She reported back to the district court with assurances
that Perricone was the sole culprit in the USAO and that the defense was likely
responsible for press leaks. 5
These incomplete initial reports failed to overcome the district court’s
concerns. The district court’s opinion explains several deficiencies, November
Order, 969 F. Supp. 2d at 533-38, but it suffices here to note that Perricone,
now a private citizen, had not been questioned under oath by Jan Mann. The
catalog of Perricone’s comments obtained by the district court reflected those
he composed as “HenryL.Mencken_1951” but did not include comments he
submitted under alternative monikers.
Surprisingly, in the first week of August, while the district court’s
inquiries were still being pursued, an extensive interview of Perricone was
published in New Orleans Magazine. The interview was both revelatory and
self-serving. Revelatory, inter alia, was the information that Perricone had
actually posted comments about pending USAO matters under not one but
several assumed names. Self-servingly, he stated his commenting was “my
secret,” that he had been motivated to post comments only to defend the
practices of his office, and that no one else in the office, specifically Letten and
Jan Mann, had known of his activity.
The district court was pondering a request by the defendants to hold a
hearing on their motion for a new trial. While responses from the USAO had
up to this point been under seal, the district court identified several categories
of emails produced by the government that the district court believed could be
5 In another case being handled by the New Orleans USAO, Jan Mann as lead counsel
also stood silent while the court repeated Letten’s assurances that only Perricone had
commented unethically. United States v. Broussard, No. 2:11-CR-299, 2014 WL 3489725
(E.D. La. July 14, 2014), aff’d, 595 F. App’x 441 (5th Cir. 2015).
6
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relevant to the extent of possible misconduct. After hearing both sides about
whether those documents should be revealed to the defendants, the district
court ordered all but one produced under a protective order. The district court
also set a status conference at which Perricone would testify under oath.
At that October 10, 2012 status conference, attended by DOJ
representatives, Jan Mann, and defense counsel, Perricone testified
extensively. From the district court’s perspective, Perricone raised further
questions about the possible involvement of the local FBI in press leaks and
about online monikers that he affirmed he did not use, specifically those of
“eweman” and certain variations on “campstblue.” Postings under these
additional names had come to the district court’s attention because their
content implied they might have been written by insiders to the prosecution.
Perricone admitted to using several monikers, but he could not recall if he had
used others. He also stated that he posted generally at nights and on
weekends, although a handful were written in his office at work. A colloquy
toward the end of this hearing led the district court shortly afterward to write
Jan Mann seeking information on whether any personnel associated with the
federal courts might also have been posting comments online. Jan Mann
responded on October 19 with a letter that included the following statements:
Prior to the Perricone incident, I was not a follower of nola.com
postings and had no real sense of what was happening there . . . .
In trying to express these thoughts about human failings and
flaws, about hypocrisy and hidden agendas, I did not intend to
suggest that anyone else in particular was posting. If I was so
perceived, I regret it.
Before it could take testimony from another former AUSA, 6 as the
district court put it “Another Shoe Drops/Another ‘Secret’—Friday November
6Defense counsel had identified Michael Magner. Magner, who had left the USAO,
suggested that several people in the office had been posting comments or, contrary to Letten’s
7
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2, 2012,” a lawsuit was filed alleging that Jan Mann had been commenting, as
“eweman.” About forty inappropriate comments under this moniker had
appeared on the Nola.com website from November 2011 until Perricone was
exposed in March 2012. The suit alleged that “approximately 63 percent of the
posts by [First AUSA Mann] appear with comments posted by Perricone, and
they frequently reply to express consistency with the points of view expressed
by the other.” November Order, 909 F. Supp. 2d at 530. It took four days, plus
a specific request by the district court, before Letten informed the district court
that indeed, Jan Mann had “much to his surprise” admitted her activity on
Nola.com.
The district court’s hearing to take testimony from Magner occurred on
November 7, with Letten (standing in for Jan Mann), representatives of the
DOJ, and defense counsel. Magner yielded insights into the possible
knowledge of other AUSAs and office personnel about Perricone’s comments.
He specifically insinuated that Mann and her husband, AUSA Jim Mann, as
friends of Perricone, knew about the commenting. Bernstein from DOJ stated
her “surprise” at the original allegations against Perricone and that she was
“flabbergasted” and incredulous about Mann’s involvement. Bernstein
assured the district court that, having interviewed current and former
members of “the prosecution team,” she was told that none of them had been
posting comments. She contended that because the postings were anonymous,
the district court had conducted a thorough jury voir dire, and Jan Mann’s
postings on the Danziger Bridge case apparently post-dated the trial, “the
conduct at issue had no effect on the validity” of the verdict against the
defendants. Id. at 533.
statement, had either known about or strongly suspected Perricone was doing so. Magner
also stated that Jan Mann’s husband Jim, another AUSA, was Perricone’s closest
professional friend, and their offices were next door to each other.
8
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The district court’s November 2012 opinion and order summarizing
developments to this point culminates with two overlapping questions:
(1) what is the full extent of the misconduct, and what are its institutional
ramifications; and (2) how does such misconduct, both that which has occurred
and what the defendants believe to have occurred, affect the validity of the
verdicts under Federal Rule of Criminal Procedure 33? Id.
The district court was as yet unable to rule on the motion for a new trial
because it was “unfortunately hampered by the inability of the DOJ to provide
reliable investigatory answers.” Id. at 537. The district court’s indecision
stemmed from an inadequate investigation into the leak of the Lohman guilty
plea. Also contributing was Jan Mann’s conflicted and untrustworthy role in
the investigation. She had stood by in open court while Letten proclaimed
“gospel truth” that no one else in his office had posted comments and was the
sole AUSA responsible for investigating the extent of online commenting. All
the while, the district court surmised, she had to be trying to protect herself
from Perricone’s fate. While still indicating skepticism that the government’s
errors could justify a new trial, the district court made significant preliminary
findings:
(1) Certain members of the USAO monitored and reviewed
Nola.com articles, in particular the “comment” postings, and
shared them with other members of the office;
(2) Some members of the USAO determined that the posts
suspiciously seemed to contain confidential, privileged, or
sensitive information about a variety of cases in which the office
was involved;
(3) Certain members of the USAO commented to each other on
their suspicions, particularly concerning commenters named
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“legacyusa” and “HenryL.Mencken_1951,” and linked those posts
possibly to Perricone;
(4) Two individuals in the office emailed each other only a week
before the Lohman plea and four months before the Danziger
Bridge indictments, and indicated that comments concerning the
Danziger Bridge incident were written by people “who know a little
bit too much about our office . . .”; and
(5) Jan Mann supervised the responses to the district court’s
attempts to ascertain the extent of online commenting within the
office to that point.
The district court quoted a number of the Perricone comments directly
relating to the Danziger Bridge prosecution and was worried, particularly in
light of the belated identification of Jan Mann as “eweman,” whether these
were the only unauthorized comments from within the office. The district court
reiterated its concern, previously expressed, that at least one cooperating
defendant felt coerced into pleading guilty, that the sentences meted out to
defendants were shockingly disparate, that FBI Agent William Bezak had used
coercive tactics against a defense witness, and that the defense was deprived
of live testimony by at least three witnesses who refused to testify at trial when
DOJ targeted them for possible perjury charges. Three years after trial,
however, not one of those people had actually been charged with a crime.
In sum, the district court ordered DOJ to recommence investigation of
both the Lohman leak and the commenting and to finally answer the questions
the court had raised. The district court strongly urged DOJ to appoint
impartial investigators. This order was entered on November 26, 2012.
Would that this were the end of the story. Two weeks after this order,
Letten resigned as United States Attorney, and both Jan Mann and her
10
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husband Jim retired with their panoply of federal benefits intact. 7 The DOJ
acted on the district court’s suggestion by appointing two attorneys—FAUSA
John Horn and AUSA Charysse Alexander—from the Northern District of
Georgia to conduct an investigation ranging from the New Orleans office of the
United States Attorney to the Criminal Division of DOJ. 8 From the end of
January until July 2013, Horn and Alexander issued an initial report, followed
by four supplemental reports and voluminous supporting material, which are
best described as a whirlpool cycling toward and gradually reaching its
drainage outlet. From a starting point of generality and vagueness about the
misconduct within the USAO and DOJ, the district court painstakingly pried
more details and startling information by asking questions two and three
times. 9
For example, the district court ascertained that neither Jan Mann nor
her husband had ever been placed under oath when being interviewed by Horn
and OPR, and each had refused to execute affidavits. 10 The district court
At the time, Jim Mann was the supervisor of the USAO’s Financial Crimes and
7
Computer Crimes Unit.
8 Much of the information provided in the “Horn reports” remains under seal, but all
of the information has been reviewed by this court on appeal. The Horn investigation was
duplicated simultaneously by an OPR internal DOJ inquiry, which had begun in July 2012
and was completed in December 2013, following the district court’s grant of a new trial. The
court’s September 2013 opinion granting a new trial refers to the otherwise confidential OPR
investigation only when certain materials OPR developed had been revealed to the district
court.
9Again, this recitation simply summarizes a 16-page excerpt from the district court’s
new trial order, to which the reader is referred for complete details. September Order, 969 F.
Supp. 2d at 554-67.
10 In fact, Jan Mann had not been asked, because her attorney said she would not
answer, whether her answers to the original OPR investigatory questions, which had been
posed to the employees of the USAO in July 2012, “would have changed,” after the revelation
of her online activity.
11
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finally gained access to Jan Mann’s interview, well after it occurred, and found
it incomplete. 11 During her OPR interview, she claimed for instance, that she
had essentially told Letten about her own online comments back in March
2012, and that she assumed that his conduct and carefully worded statements
thereafter were influenced by her confession. Letten, in his interview, denied
having been so informed by Ms. Mann. As the district court later queried, who
is to be believed?
The district court’s curiosity was further piqued by a carefully worded
reference in the initial Horn report to comments about the trial posted by a
DOJ Civil Rights Division employee (pseudonym “Dipsos”) “who had first-hand
knowledge of the Danziger Bridge case but was not a member of the
prosecution team.” Answering the district court’s inquiry, the First
Supplemental report, filed in late March, stated that this employee was, inter
alia, “walled off from the prosecution team and was prohibited from having
any substantive discussion about the investigation with any member of the
prosecution team or any supervisor over the prosecution team.” The
investigators remained obviously evasive about this person’s identity until
pointedly questioned by the district court. Not until a May 15 in-chambers
hearing with Horn and Alexander was “Dipsos” revealed to be Ms. Karla
Dobinski, a decades-long Civil Rights Division attorney, who had actually
testified before Judge Engelhardt in her capacity as the head of the DOJ’s
internal “taint team” in the Danziger Bridge case. Her responsibility in the
course of the prosecution was to protect indicted police officers’ civil rights. 12
11 The interview was conducted in the presence of an FBI agent, rendering Ms. Mann
potentially subject to prosecution under 18 U.S.C. § 1001, but as the district court noted, the
DOJ had an inherent conflict of interest in selecting this mode of procedure, for DOJ was not
likely to prosecute her while attempting to protect the Danziger Bridge verdicts.
Officer Bowen testified before a grand jury pursuant to a court order granting him
12
use immunity. Dobinski’s duty was to ensure that during the later federal prosecution, this
12
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In the October 2012 hearing, Bernstein had not mentioned Dobinski as one of
the “prosecution team” whom she queried about online commenting. The
district court makes no accusation against Bernstein; we note, however, that
her denial of online commenting by the team proved misleading.
Other gaps in the investigation were evident. Neither Perricone nor Jan
Mann has acknowledged that the monikers so far discovered to have been used
by them are the only ones under which they posted comments. Dobinski is
disturbingly vague in her OPR interview about how many other people in her
department were aware of her commenting and whether “Dipsos” was her only
moniker. 13 DOJ simply refused to follow up with the newspaper reporters who
had written articles referencing “two people familiar with the investigation”
and “a source close to the probe” concerning the Lohman plea leak. And, “[i]n
a truly disappointing and unsettling crucial development, the Second
Supplemental Report also indicates that the DOJ could not forensically recover
computer data from the USAO’s Internet portals for years 2010 and 2011 (prior
to December 19, 2011) because ‘it did not retain data for the period before
that.’” The district court’s attempt to discover other online prosecutorial
misconduct was thus undermined.
Because of the indeterminacy about the extent of prosecutorial
misconduct, the district court was faced with holding a public hearing on the
order was not violated. Kastigar v. United States, 406 U.S. 441 (1972); Garrity v. New Jersey,
385 U.S. 493 (1967).
See the district court’s Order and Reasons dated December 12, 2013 at pp.8-12,
13
which quotes Dobinski’s vague answers. Just one example:
Q: But is it correct that um that you’re not saying you’re a hundred
percent sure there were no other postings? If we found additional postings, it
is not going to contradict your position here today?
A: Right.
13
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new trial motion in which it would sift live testimony about the Lohman guilty
plea leak and prosecutorial remarks about the Danziger Bridge case. Critical
testimony would have been developed from the conflicting statements by
prosecutors themselves, including Letten, on these subjects. The district court
desisted from this potentially embarrassing course of action in part because of
the additional delay, but more so based on its conclusion that a critical mass of
unethical and unprofessional deeds supported a new trial. 14 In ninety pages,
the district court develops the grounds for granting a new trial.
Factually, the order relies on a number of events. Foremost are the
online comments of Perricone and Dobinski, which in tandem tended to create
an “On-Line 21st Century ‘Carnival Atmosphere’,” as graphically depicted in
14 Of course, were the district court’s decision to be reversed, it could revert to holding
an evidentiary hearing to pursue further the details of the misconduct. In its footnote 127,
the district court identifies some of the outstanding issues:
As HenryL.Mencken_1951, Perricone made two very correct statements:
“There are NO secrets in New Orleans . . . .”[record citation], and “Perhaps the
truth will surface. God knows, we need more truth in this city.” [record
citation]. Yet the Court, even with the capable assistance of Mr. Horn and
Ms. Alexander, remains unaware of: the identity of the source of the “leak” of
the Lohman plea, in possible violation of Rule 6(e); the earlier user IDs of
Perricone and Jan Mann, and how many other user IDs might be involved; the
identities of ten of the eleven user IDs that were the subject of the DOJ
administrative subpoena . . .; the information which could have been obtained
from a forensic recovery of computer data for years 2010 and 2011 (prior to
December 19, 2011) by the DOJ; whether USA Letten agrees with his former
First Assistant that she disclosed her online posting activity in March 2012,
and whether that information was conveyed to others in DOJ over six months
prior to its public disclosure in early November 2012; whether Karla Dobinski’s
posting was known to others at DOJ; whether “123ac” is an AUSA; whether
other government agency employees posted comments on this case, as did
government agency employee “A” and whether any of the three defense
witnesses who refused to testify at trial will ever be charged with the crimes
for which they were threatened prior to this trial. These are but a few of the
outstanding issues which would be the subject of an evidentiary hearing. It is
anticipated that surely others would surface upon learning further information
at such a hearing.
September Order, 969 F. Supp. 2d at 624 n.127.
14
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the district court’s quotation of all of the comments posted by these two.
September Order, 969 F. Supp. 2d at 588-603. Second is Jan Mann’s testimony,
which includes the implications that Letten was aware of her online posting
activity in March 2012 (when Perricone’s postings were first ‘outed’); that she
suspected and believed Letten had reported up the line to DOJ about the
posting; she “believe[d] in her heart” that other AUSAs were also commenting
on Nola.com; and she believes that the USAO and DOJ purposefully avoided
directly asking its personnel about their online posting while denying that any
organized propaganda campaign was occurring in the Danziger Bridge case.
Third, the district court evinces doubt about the credibility and tactics of FBI
Special Agent Bezak, who at one point appeared to have defied a court order
prohibiting contact with defendant Villavaso without his attorneys’ presence.
After the government produced a corrected timeline of events, Bezak appeared
to be cleared of direct misconduct, but his critical chronological error in a
significant matter troubled the district court. Additionally, Bezak did himself
no credit by attempting to excuse the highly questionable testimony of the
government’s cooperating defendant Lohman by saying that, “It is Mike
Lohman’s truth,” and “Every person has their own memory, recollection
interpretation of events.” Bezak had also threatened a potential defense
witness with being separated from her three children “for lying,” yet this
witness was never charged.
The government’s tactics extended to the presentation of testimony by
cooperating defendant Hunter that was inconsistent and incredible to the point
that the district court dismissed Count 10, the only count that depended on
Hunter’s testimony, and the government has not appealed. That the
government was familiar with “problems” in Hunter’s testimony is inferable
from the district court’s finding that the testimony deviated significantly from
15
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Agent Bezak’s handwritten notes of his previous interview with Hunter. Not
only this judge heard testimony from Hunter: Chief Judge Sarah Vance heard
his testimony and strongly doubted its credibility and his sincerity in accepting
responsibility. Denying the government’s request for more lenient treatment,
she sentenced him to the maximum eight years imprisonment on charges
under a favorable plea agreement for obstructing justice and misprision of a
felony. See id. at 612.
The disparity between the punishment meted out to cooperating
defendants and those who went to trial is stark. The cooperating defendants’
participation in the incident and cover-up seems comparable, yet the
government threw the book at those who went to trial by stacking firearms
charges. As a result of the charging disparity, those who went to trial have
been sentenced from thirty-eight to sixty-five years in prison, while the
cooperating defendants garnered from five to eight years. In addition to
Hunter, 15 another cooperating defendant, Hills, had fired at people on the
bridge. Hills pled guilty to misprision/obstruction charges and was sentenced
to six and a half years in prison, but he had earlier denied his guilt to his
supervisor. He explained that he had to take the plea deal as “the best [he]
could get.” A third cooperating defendant, Barrios, was the only defendant who
pled out but was not presented as a witness by the government. Barrios had
been present at the bridge and changed his statements about whether he fired
on the civilians. Barrios received a five-year sentence. When he testified for
the defense, he had to contradict his wife’s statements that he had been forced
to admit guilt despite his innocence.
15 Hunter drove the truck to the Danziger Bridge and shot at Ronald and Lance
Madison, then testified as a “key” government witness.
16
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Also troubling was the saga of cooperating defendant Jeffrey Lehrmann,
who received only a three-year sentence for misprision of a felony. Yet
Lehrmann worked hand in glove with Kaufman, who was charged with
multiple felonies and received a six-year sentence. In crafting false evidence,
Lehrmann went so far as to create a fictitious witness, “Lakeisha Smith,” to
fortify the defendant officers’ stories about the shooting. Lehrmann also falsely
charged crimes against Lance Madison, the brother of a murdered, disabled
victim. Lehrmann received his favorable plea deal even after he had lied to
the federal grand jury. Even more surprising, Lehrmann had been hired as a
federal ICE agent during the pendency of the Danziger Bridge investigation
and worked as a federal agent for nearly four years. His federal employment
terminated several months after his formal guilty plea.
Finally, the district court pointed to its understanding that at least three
potential defense witnesses refused to testify following prosecution threats to
bring perjury charges against them. As the district court explained, since these
witnesses had earlier testified to the grand jury, their transcripts could be
offered at trial, but transcripts are never as powerful as live witnesses. In any
event, not one of those people was later charged.
In granting the defendants’ Rule 33 motion, the district court principally
relied on footnote nine of Brecht v. Abrahamson, which reserves the possibility
that a new trial can in some egregious circumstances be mandated for certain
“trial-type” errors even without a showing of prejudice to the defendants.
507 U.S. 619, 638 n.9, 113 St. Ct. 1710, 1722 n.9 (1993). The court also
concluded that the defendants were in fact prejudiced.
In autumn 2011, well before it ordered a new trial, the district court
dismissed, for insufficient evidence, and alternatively granted a new trial on
Count 10 against Bowen only, Count 12 against Bowen, Gisevius, Faulcon and
17
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No. 13-31078
Villavaso, and Count 13 against Bowen and Gisevius. The government did not
oppose, and has not appealed, dismissal of Count 10. Count 10 charged that
Bowen kicked Ronald Madison as he lay dying and was supported essentially
by the testimony of the government’s discredited cooperating defendant
Hunter. Counsel for the parties agreed during oral argument that if we affirm
the grant of a new trial on all counts other than Count 10, we need not discuss
the dismissal of Counts 12 and 13.
The district court issued a subsequent order on December 12, 2013 that,
in the course of deciding which documents to unseal for public view, restated
and bolstered the district court’s new trial findings. 16 In January 2014, the
district court stayed further proceedings pending this appeal.
DISCUSSION
The government’s appeal, in pertinent part, challenges the district
court’s new trial decision with arguments why “anonymous online postings by
government attorneys do not warrant a new trial in this case.” As subsidiary
points, the government challenges the ruling that other aspects of the
prosecution cumulatively harmed the defendants and supported the new trial
grant, and it seeks removal of the district judge from further proceedings. We
discuss each issue in turn.
In reviewing whether the district court abused its discretion in the grant
of a new trial, we review questions of law de novo, but the district court’s
findings of fact must be upheld unless they are clearly erroneous. United
States v. Mann, 161 F.3d 840, 860 (5th Cir. 1998). The district court’s lengthy
opinions embody hundreds of subsidiary findings, few of which are challenged
The court added significant excerpts from OPR materials, plus a caution, with which
16
we agree, that OPR materials still under seal are also revelatory.
18
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by the government. With only one exception, the government fails to challenge
the district court’s findings on the prosecutors’ credibility. 17
The motion for new trial here was granted because “the interest of justice
so requires,” Fed. R. Crim. P. 33(a), and the motion was specifically based on
newly discovered evidence. Fed. R. Crim. P. 33(b)(1). Newly discovered
evidence need not relate only to guilt or innocence, but may be relevant to any
controlling issue of law. C. WRIGHT & S. WELLING, 3 FED. PRACTICE & PROC.
§ 588, at 448 (2011). If a court finds “that a miscarriage of justice may have
occurred at trial, . . . this is classified as such an ‘exceptional case’ as to warrant
granting a new trial in the interest of justice.” United States v. Robertson,
110 F.3d 113, 1120 n.11 (5th Cir. 1997) (citations and internal quotation
omitted). A miscarriage of justice harms the substantial rights of a defendant,
and it may consist of errors and omissions considered for their cumulative
effect on the trial proceedings. United States v. Barrett, 496 F.3d 1079, 1121
(10th Cir. 2007); see also United States v. Sipe, 388 F.3d 471, 492 (5th Cir.
2004).
The dissent seems to disconnect Rule 33(b)(1), governing the timing of a
new trial for newly discovered evidence, from the overarching principle that
for any new trial motion, “the interest of justice” must be considered.
Rule 33(a). We disagree with the dissent in two respects. First, the dissent
would confine the instant analysis to the strictures on newly discovered
evidence stated in the case law, which ordinarily require a demonstration of
17 The government alleges clear error only in regard to the district court’s disbelief of
taint team leader Dobinski’s explanation why she resorted to Nola.com to be informed about
the trial proceedings. Given the nature of her misconduct and its online effect, the district
court’s finding is lagniappe. The government’s challenges to the overall significance of the
online postings on jury selection, trial tactics, effect on witnesses and defendants are more
on the order of mixed questions of fact and law, see United States v. Wall, 389 F.3d 457, 465
(5th Cir. 2004), and are discussed as such infra.
19
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No. 13-31078
prejudice to the verdict. See, e.g., United States v. Bowler, 252 F.3d 741, 747
(5th Cir. 2001) (per curiam). We are aware of these strictures, and we note
that the other four criteria stated in the case law--that the evidence of illicit
government online posting was newly discovered and unknown at the time of
trial; the defendants did not lack diligence in discovering the evidence; the
evidence is not merely cumulative or impeaching; and the evidence is material-
-are not challenged by the dissent. Id. The problem with this reasoning is that
this court has never had occasion to consider how to respond to the unique set
of events presented in this case, that is, to online commenting discovered post-
verdict and to the inability of the trial court and this court to know even at this
point the extent of the prejudicial commenting because of the government’s
dilatory conduct.
The Brecht analysis, as will be seen, fits this unprecedented scenario and
is but a gloss on current Rule 33 precedent; surely the Federal Rules of
Criminal Procedure have to accommodate Supreme Court decisions concerning
the fundamental fairness of a trial. It is inexplicable hyperbole to predict that
this decision renders the Bowler standard “meaningless.”
Second, the dissent artificially confines the scope of newly discovered
evidence to “the identities of the commenters,” as if (a) Perricone, Jan Mann
and Dobinski were the only commenters, and (b) the “identities” were
separable from the inflammatory comments themselves, and therefore (c) the
impact of the comments on the voir dire process, trial jurors, witnesses, and
defendants are quantifiable. From the state of this record, however, neither
we nor the defendants can know who all the commenters were, how many
online comments are attributable to biased and vindictive federal government
employees acting outside the bounds of their ethical duties, and thus the full
20
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impact of the misconduct. What is known, at a minimum, is that seven of
twelve seated jurors were familiar with nola.com postings.
I. The Consequences of Anonymous Online Postings
That three supervisory-level prosecutors committed misconduct in
connection with the Danziger Bridge prosecution is beyond dispute.
Perricone’s comments spanned the entire prosecution and went directly to the
guilt of the defendants, the collective guilt of NOPD, and the relative
competence and integrity of defense counsel versus the USAO. Dobinski’s
comments stirred the pot by encouraging commenters who were plainly
familiar with the trial proceedings, one of whom was Perricone, to keep doing
a “public service” with their biased reports. Mann’s comments, posted during
post-trial sentencing proceedings, displayed partiality toward the prosecution
and denigrated the district court and defense counsel in another Danziger
Bridge case.
The government acknowledges significant, repeated misconduct by
Perricone and Jan Mann and, to a lesser extent, Dobinski. The government
concedes that Perricone “intentionally committed professional misconduct”
violating (a) federal regulations restricting extrajudicial statements by DOJ
personnel relating to civil and criminal proceedings, 18 (b) DOJ policies 19 and
(c) court and state bar rules of professional conduct. 20 The government
acknowledges that besides his postings in this case, Perricone posted
18See 28 C.F.R. § 50.2, e.g., § 50.2(b)(6)(i), (vi): “Observations about a defendant’s
character” and “[a]ny opinion as to the accused’s guilt” will “generally tend[ ] to create
dangers of prejudice without serving a significant law enforcement function.”
19 See United States Attorneys’ Manual §§ 1-2.401(E), 1-7.550(f).
20See Rules 53.2, 53.3, 53.5, Local Criminal Rules of the United States District Court
for the Eastern District of Louisiana; Rule 8.2, Louisiana Rules of Professional Conduct.
21
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No. 13-31078
“thousands” of anonymous comments on various topics over the course of
several years. As to Jan Mann, the government admits that her postings on
Nola.com of “anonymous comments about Department of Justice matters”
violated the same rules, although the results of her postings relating to the
Danziger Bridge prosecution are mitigated because they allegedly occurred
after the trial had concluded. The government also admits that Mann acted
dishonestly during the new trial proceedings when she misrepresented facts
and allowed them to be misrepresented to the district court. The government
rejects Perricone’s and Mann’s repeated assertions that their private,
anonymous online commenting could be separated from their professional
public duties. As the “taint” team leader for the prosecution, the government
observes, Dobinski was prohibited from participating anonymously in a public
forum discussing the case, because “several sources of authority broadly
prohibit Department attorneys from making any extrajudicial statements
regarding a pending matter.” 21 Contending, however, that her comments were
innocuous and “not intentional” misconduct, the government acknowledges
only that Dobinski exercised “poor judgment” in posting comments during the
trial.
What the government nowhere confronts is the incomplete, dilatory, and
evasive nature of its efforts to respond to the district court’s inquiries about
the full extent of online activity by government employees and the source of
the Lohman plea leak. The district court was stymied and frustrated for more
than twelve months (June 2012 - July 2013) by the government’s tactics, while
private sources like a local magazine and an individual under federal
investigation repeatedly leapfrogged government admissions of official
misbehavior. The district court doggedly pursued the truth about these
21 See 28 C.F.R. § 50.2(b)(5); USAM §§1-7.401 E, G; Local Rule 53.5.
22
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matters, but to this day the government has never fully answered the district
court’s legitimate questions.
Ignoring the procedural deficiencies of its misconduct investigation, the
government’s defense against a new trial consists of two essential premises:
first, only a finding of specific prejudice to the verdict will suffice to support a
new trial; and second, prejudice was not shown on the record developed in the
district court. We disagree that specific prejudice is a necessary prerequisite
to a new trial in this sui generis case. But even if required, prejudice here was
shown both from this pattern of misconduct and evasion and from other
abusive prosecutorial actions.
A. Brecht
The district court concluded that the government’s protracted
misconduct required a new trial under Brecht. 22 In Brecht, the Supreme Court
held that to obtain relief on collateral review, a habeas petitioner must
establish that the constitutional trial error had a “substantial and injurious
effect or influence in determining the jury’s verdict.” Id. at 637-38, 113 S. Ct.
at 1722 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239,
1253 (1946)). In other words, the habeas petitioner must establish actual
prejudice. The Court distinguished such “trial errors,” which occur during the
presentation of a case to the jury, from “structural defects” in the prosecution,
like denial of counsel, that require automatic reversal of a conviction. 507 U.S.
at 629-30, 113 S. Ct. at 1717. The Court also stated that its holding:
does not foreclose the possibility that in an unusual case, a
deliberate and especially egregious error of the trial type, or one
that is combined with a pattern of prosecutorial misconduct, might
so infect the integrity of the proceeding as to warrant the grant of
22The district court also cited its supervisory power. This ground for relief is disputed
by the government, and we neither discuss nor rely on it.
23
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habeas relief, even if it did not substantially influence the jury’s
verdict.
Id. at 638 n.9, 113 S. Ct. at 1722 n.9 (emphasis added).
The district court found that the government’s pervasive misconduct so
contaminated every phase of the prosecution that this case, unique “in nature
[and] in scope,” fit “squarely within” Brecht’s prejudice exception. September
Order, 969 F. Supp. 2d at 619.
The government argues that (1) the Supreme Court did not create an
exception to the prejudice requirement in Brecht but merely reserved the
possibility for a future decision and (2) thus, prejudice cannot be presumed but
must be proven. These contentions assume that the misconduct in this case—
online commenting, guilty plea leak, and the incomplete investigation of
misconduct—was not sui generis. Yet neither the government’s efforts nor our
additional research reveals cases on point or closely analogous.
One certainty is that the government presents an overly restrictive
interpretation of Brecht footnote nine. Contrary to the government’s position,
this court has described the errors contemplated in footnote nine as “hybrid”
errors, falling somewhere on a spectrum between structural errors (prejudice
presumed) and trial errors (subject to the harmless error standard). See
Burgess v. Dretke, 350 F.3d 461, 471 (5th Cir. 2003). In Burgess, this court
held that under Brecht, “if ‘structural’ or ‘hybrid’ error occurs, harmless error
review is inappropriate.” Id.; see also Cupit v. Whitley, 28 F.3d 532, 538 (5th
Cir. 1994). We interpreted Brecht to create a new category of errors, not simply
to preserve the possibility of doing so in the future. See Burgess, 350 F.3d at
471; Cupit, 28 F.3d at 532. And we have interpreted Brecht to hold that “a
federal court in habeas must generally review a state court’s decision using a
strict ‘harmless error’ standard, but that cases involving ‘structural’ or ‘hybrid’
24
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error require reversal regardless of harm.” Burgess, 350 F.3d at 471 (emphasis
added).
This court’s holdings are in accord with those of the other circuits that
have addressed the issue. See United States v. Harbin, 250 F.3d 532, 545 (7th
Cir. 2001) (trial errors described in Brecht footnote nine require automatic
reversal); Hardnett v. Marshall, 25 F.3d 875, 879 (9th Cir. 1994) (hybrid
footnote nine error is “assimilated to structural error and declared to be
incapable of redemption by actual prejudice analysis”). The Hardnett court
added, “[w]e assume that the facts set out in Footnote Nine are illustrative, not
exclusive, and that the key consideration is whether the integrity of the
proceeding was so infected that the entire trial was unfair.” Id. In addition,
the Third Circuit, while refusing to recognize footnote nine as “truly”
establishing an exception to harmless error, still did not “foreclose the
possibility” that such an exception could exist. Hassine v. Zimmerman,
160 F.3d 941, 959 n.29 (3d Cir. 1998) (quoting Brecht, 507 U.S. at 638 n.9,
113 S. Ct. at 1710 n.9).
Most decisions considering the possibility of Brecht footnote nine
“hybrid” error have declined to grant relief to defendants, because most of the
complaints have involved pure trial error. 23 As the Court noted in Brecht,
when the errors occur during the presentation of the case to the jury, they are
amenable to harmless error review “because they may be quantitatively
assessed in the context of the evidence as a whole, to determine the effect on
the trial.” Harbin, 250 F.3d at 544 (citing Brecht, 507 U.S. at 629, 113 S. Ct.
at 1710). But “[n]ot every error . . . is easily shoe-horned into one of those neat
23 See, e.g., Hassine, 160 F.3d at 961 (Doyle error not egregious enough to warrant
footnote nine exception); Hardnett, 25 F.3d at 880-81 (“the prosecutor’s misconduct did not
infect the whole trial”); Cupit, 28 F.3d at 538 (unconstitutional admission of hearsay is
“classic trial error[]”).
25
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categories. The ‘nature, context, and significance of the violation,’ for instance,
may determine whether automatic reversal or the harmless error analysis is
appropriate.” Id. (citation omitted). Courts must therefore decide where, along
the spectrum of errors, those which are not clearly trial type or structural may
fall.
The “unprecedented” Harbin case, 250 F.3d at 539, is instructive. In
Harbin, the court allowed the prosecutor to “save” until mid-trial a peremptory
juror challenge, which he exercised to replace one juror with an alternate. The
replacement juror was not shown to have been biased, nor could any impact on
the verdict be proven. Nevertheless, the Seventh Circuit held that the error
was precisely the type that “defies harmless error analysis.” Id. at 545. The
defendants had been denied a comparable right to excise a juror during trial
not only because they had previously used all of their peremptory challenges,
but also because they were not even informed of the possibility of delayed
exercise. Harbin held that this error affected the fundamental fairness of the
trial and demanded a new trial without harmless error proof, because the
imbalance in peremptory challenges “gave the prosecutor unilateral
discretionary control over the composition of the jury mid-trial.” Id. at 547-48.
And it was “simply impossible as a practical matter to assess the impact on the
jury of such an error.” Id. at 548.
So too here, the breadth of the government’s misconduct and continued
obfuscation, as the district court found, makes this the “unusual case”
contemplated by Brecht. The online commenting alone, which breached all
standards of prosecutorial ethics, gave the government a surreptitious
advantage in influencing public opinion, the venire panel, and the trial itself.
And by degrees, the district court was led to conclude that what it had
previously considered to be isolated missteps was actually evidence of a pattern
26
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of misconduct that permeated every stage of the prosecution. And because the
government refused to adequately investigate its errors, covered up what it
knew to be misleading omissions, and in some instances lied directly to the
court, the district court could neither uncover the extent of the prosecution’s
transgressions nor determine the severity of the prejudice suffered by the
defendants.
The government’s unrelenting efforts thus prevented the district court
from evaluating the fairness of defendants’ trial and thrust the prosecution
into the rare territory of Brecht hybrid error. Trial errors can be evaluated for
harmlessness precisely because the nature and extent of the harm is
ascertainable from a review of the record. Brecht, 507 U.S. at 629, 113 S. Ct.
at 1710. Here, the ability of trial and appellate courts to evaluate the effect of
the anonymous comments has been thwarted by the government’s subsequent
lack of cooperation. There is a fundamental imbalance between the knowledge
of the prosecutors, on one hand, and the defendants and courts, on the other,
concerning the true extent and significance of the ongoing commenting. This
case thus presents the unclassifiable and pervasive errors to which the
Supreme Court referred in Brecht when it identified a category of errors
capable of infecting the integrity of the prosecution to a degree warranting a
new trial irrespective of prejudice.
Our conclusion is reinforced by overarching standards of prosecutorial
conduct and the nature of their breach. 24 Prosecutors maintain the integrity,
fairness and objectivity of the criminal justice system in part by refraining from
speaking in public about pending and impending cases except in very limited
circumstances. The government’s own list of applicable regulations and ethical
24 This is not a conclusion that our “supervisory duty” supports a new trial, but a
reflection on the prosecution’s cynical minimization of its wrongdoing. Cf. Rideau, 373 U.S.
at 728, 83 S. Ct. at 1420 (Harlan, J., dissenting).
27
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rules demonstrates that the prosecutors’ obligation of silence extends beyond
“confidential and grand jury matters” and beyond the “prosecution team”
narrowly defined to include only those who participate in a particular case.
Further, there is no dividing line between the prosecutors’ professional and
private lives with respect to these duties. Had Perricone, Mann, or Dobinski
frequented a bar or habitually called in to a radio talk show and blown off
steam about the Danziger Bridge prosecution in the terms they used online,
their misconduct would have been the same as it is with their anonymous
online commentary.
The reasons for prosecutorial self-restraint are manifest.
Although ‘[s]tatements to the press may be an integral part of a
prosecutor’s job, and . . . may serve a vital public function,’ that
function is strictly limited by the prosecutor’s overarching duty to
do justice.’ Those who wield the power to make public statements
about criminal cases must ‘be guided solely by their sense of public
responsibility for the attainment of justice.’
Aversa v. United States, 99 F.3d 1200, 1216 (1st Cir. 1996) (quoting Souza v.
Pina, 53 F.3d 423, 427 (1st Cir. 1995)). Insulating the prosecution and trial
from bias, prejudice, misinformation, and evidence revealed outside the
courtroom are crucial to the fairness of our processes. Equally important, the
prosecutor must respect the presumption of innocence even as he seeks to bring
a defendant to justice.
Justice Sutherland eloquently captured the prosecutor’s calling. A
government prosecutor
is the representative not of an ordinary party to a controversy, but
of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose interest,
therefore, in a criminal prosecution is not that it shall win a case,
but that justice shall be done. As such he is in a peculiar and very
definite sense the servant of the law, the twofold aim of which is
that guilt shall not escape or innocence suffer. He may prosecute
28
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with earnestness and vigor—indeed, he should do so. But, while
he may strike hard blows, he is not at liberty to strike foul ones. It
is as much his duty to refrain from improper methods calculated
to produce a wrongful conviction as it is to use every legitimate
means to bring about a just one.
Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629 (1935), overruled on other
grounds by Stirone v. United States, 361 U.S. 212, 80 S. Ct. 270 (1960). In
short, that the prosecutors’ misconduct was so incongruous with their duties
buttresses our conclusion that this is the rare case involving Brecht error.
The government rejects that conclusion and contends that prejudice
must be proven here, citing cases concerning pretrial publicity, jury selection
and extraneous influence on impaneled jurors. See, e.g., Skilling v. United
States, 561 U.S. 358, 130 S. Ct. 2896 (2010); Sheppard v. Maxwell, 384 U.S.
333, 86 S. Ct. 1507 (1966); Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417
(1963). Initially, we note that under Fed. R. Crim. Proc. 52(a), the government
bore the burden of proving no prejudice. Moreover, the cases cited by the
government are of dubious relevance factually and legally. First, the
government cannot obstruct the inquiry into online activity and then claim
that there is insufficient proof to support the district court’s findings. Cf.
United States v. Derrick, 163 F.3d 799, 809 (4th Cir. 1998) (where prosecutorial
misconduct largely consisted of discovery violations, and violations had been
corrected, any prejudice that might have existed was fully remedied by a new
trial order). Second, the true extent of the online misconduct has not yet been
fully revealed, and there are strong implications in testimony by Magner and
the interviews of Jan Mann and Dobinski and from OPR materials that the
online commenting was widely known within the New Orleans USAO and
29
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known within DOJ. 25 Third, the DOJ’s sluggish approach to uncovering and
revealing the extent of postings to the district court suggest a prosecution
insensitive—at best—to what it now acknowledges are strict governing legal
and ethical standards. Fourth, contrary to the government’s assertions, the
anonymous nature of the comments does not reduce but increases their
pernicious influence. Fifth, cases that concern outside pretrial publicity
perpetrated by the press, e.g. Sheppard v. Maxwell and Rideau v. Louisiana,
present neither prosecutorial misconduct nor unquantifiable influences on the
proceedings. Sixth, the online comments could have affected not only the
venire panel and actual jurors but also cooperating defendants and defense
witnesses. Finally, the inevitable impression left by the government’s
misconduct and ongoing pettifoggery is of a prosecution determined to convict
these defendants by any means.
In sum, while a demonstration of prejudice is ordinarily a prerequisite
for the grant of a new trial, the Supreme Court specifically identified the type
of extraordinary errors that will dispense with this burden. 26 Such errors
occurred here. Prosecutorial misconduct commenced even before indictments
were handed down and continued throughout trial and into the post-trial
proceedings, and that misconduct affected the prosecution and trial in ways
that cannot be fully evaluated due to the government’s mishandling—to put it
politely—of the investigation into cyberbullying. The online anonymous
25The court also found incredible Perricone’s and Mann’s denials that each knew
about the other’s postings. Too often, each of them posted in reference to the other’s
observations and unfailingly reinforced their prejudiced views.
26Although Brecht itself concerned habeas relief, “similar or even broader exceptions
to the harmless error doctrine should logically apply at the district court level or on direct
appeal, which do not involve the especially deferential habeas standard of review.” Sonja B.
Starr, Sentence Reduction as a Remedy for Prosecutorial Misconduct, 97 GEO. L.J. 1509, 1561
(2009).
30
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postings, whether the product of lone wolf commenters or an informal
propaganda campaign, gave the prosecution a tool for public castigation of the
defendants that it could not have used against them otherwise, and in so doing
deprived them of a fair trial. The district court’s steady drip of discoveries of
misconduct infecting every stage of this prosecution, combined with the
government’s continued obfuscation and deceit, renders this the rare case in
which imposition of the Brecht remedy is necessary.
B. Prejudice Proven
Alternatively, even if a finding of prejudice is required here, the district
court did not err in finding that the government’s misconduct in this
prosecution prejudiced the defendants.
Although defendants frequently seek mistrials alleging prosecutorial
misconduct, their motions are rarely granted. Even when a district court finds
that misconduct occurred, it must also normally find that the misconduct in
question actually prejudiced the defense. United States v. Bowler, 252 F.3d
741, 747 (5th Cir. 2001). Prejudice, in turn depends on the extent to which the
particular misconduct contributed to a guilty verdict. Id. The online activities
here were viewed by Perricone as a “public service,” designed among other
things to influence the community and put pressure on the various defendants
who were being pursued by the AUSO. Dobinski also characterized her
encouragement of other commenters about the ongoing trial as a public service.
The district court was unable to capture the extent of prejudice during jury
selection or trial because the tainted source of the comments had not yet been
revealed. On reviewing jury questionnaires for the new trial motion, however,
the district court found that seven of twelve seated jurors had visited the
Nola.com website in the months preceding trial. Further, according to the
district court’s review, jurors who visited the website appeared to have a lower
31
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opinion of NOPD officers’ honesty. Cf. Harbin, 250 F.3d at 545 (prejudice
presumed despite no proof of bias by replacement juror). From a practical
standpoint, the defendants were prejudiced because the district court found its
investigation of jury selection process could not be effectively pursued years
later. See, e.g., District Court’s Order and Reasons, December 12, 2013, at 22-
23 (explaining why an inquiry into juror bias so long after trial is unworkable).
Additionally, the district court believed that the government pressured
cooperating defendants to seek plea deals and then to shade their testimony
against the others. The district court reiterated that government threats of
perjury charges against defense witnesses, which had never materialized,
prompted several not to testify at the trial. If prosecutorial misconduct must
spawn prejudice that is shown to be outcome-determinative, then the congeries
of overbearing activities in this trial might not meet that goal. On the other
hand, the facts that the government engaged in misconduct, which took place
off the record but in public, and that the misconduct was directed at the public
but defies investigation because of the government’s tactics, should tip toward
a finding of prejudice. On-the-record misconduct can be easily evaluated; the
misconduct here cannot. Furtive misconduct should not escape remedy simply
because it was furtive. See Sipe, 388 F.3d at 477 (affirming new trial grant
for cumulative prosecutorial errors and omissions).
A prosecutor’s status, moreover, enhances the credibility of public
comments and magnifies the adverse consequences of the commenter’s
inappropriate remarks. The prosecutor’s comments implicate his or her inside
knowledge of prosecutorial activity as they explain the significance of
particular events during a case. Bias or vindictiveness in the prosecutor’s
comments, reflected repeatedly in Perricone’s postings, cast doubt on the
integrity of the process, as did Jan’s Mann’s online questioning of the district
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court’s motives in a related Danziger Bridge prosecution. Dobinski’s
contributions encouraged and approved one-sided reports about the trial. All
of these experienced, high-level prosecutors were well aware that they were
forbidden, legally and ethically, from making in public the statements they
communicated online. They all knew that employment sanctions should be
imposed for their activities if undertaken publicly.
Although the government does not deny the impropriety of online
anonymous comments about pending cases, it downplays their prejudicial
effects in several ways. First, the government argues that anonymity
diminishes the cloak of authority that would otherwise surround the
prosecutor’s pronouncements. Because the online community does not know
that a prosecutor is speaking, it cannot be adversely influenced by his
inflammatory opinions. Second, the extent of the publicity surrounding the
anonymous comments is uncertain because no one knows how many people
read online comments to the newspaper of record. Third, these comments
amounted to no more than voices in a chorus of public opinion on the Danziger
Bridge trial and were no more likely to exert an influence than those of any
other chorister. These arguments are not insubstantial, but they are
outweighed by the insidious nature of prosecutorial anonymity, the growing
influence of online communications to mold public opinion in our society, and
the danger of mob reactions.
Anonymity provokes irresponsibility in the speaker. A prosecutor may
attempt to comment anonymously in a pending case, whether in a bar, on a
talk radio show, or online. It is hard to cloak one’s experiences, however, and
listeners can easily infer, as a number of readers within the New Orleans
USAO evidently did, that someone with “insider knowledge” is making the
comments. The speaker thus trades on his air of self-importance and his
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special knowledge, while imparting a biased and dramatic flair to his
anonymous commentary.
Unlike this court’s recent decision in United States v. McRae, 27 that there
is no “proof” that members of the venire panel or actual jurors read or were
influenced by the online comments exacerbates rather than alleviates
prejudice here. Anonymous postings prevent uncovering the extent of
improper influence, adding injury to the insult of the biased, inflammatory,
and improper communications themselves. Had the comments in this case
been delivered by the prosecutors without the shield of anonymity, the extent
of the harm would have been quantifiable, but their actions eliminated the
measurement of harm. Moreover, the government overlooks that potential
harm extends not just to jurors but others involved in the case. It is well to
assume that the jurors, once impaneled, followed the district court’s
27 In United States v. McRae, No. 14-30995, 2015 WL 4542651 (5th Cir. July 28, 2015),
this court recently denied a new trial request to a former New Orleans police officer convicted
of different crimes in the wake of Hurricane Katrina. The court found no actual or presumed
prejudice attending online postings about the case by Sal Perricone. Id. at *7. That decision
is distinguishable for two reasons. Most important, McRae argued only “that the court should
presume prejudice where deliberate and egregious government misuse of the media is
combined with extensive pretrial publicity adverse to the defendant.” He relied principally
on the Supreme Court’s decision in Skilling v. United States, 561 U.S. 358, 130 S. Ct. 2896
(2010), which we have distinguished, and not on Brecht’s identification of “hybrid error.”
Indeed, the McRae court does not address Brecht. Second, unlike in this case, the McRae
court was not tasked with attempting to uncover the extent of press leaks or government
online commenting, nor was it obstructed in doing so by government delays, nor was there
cumulative evidence of high-handed prosecutorial tactics, nor was there evidence that
members of the jury may have been exposed to the online commenting before the trial, nor
were the court’s ultimate conclusions founded in grave uncertainty about the extent of
government misconduct or the impact on the trial.
Finally, McRae and this case share an important characteristic: each decision affirms
the trial court's exercise of its discretion to determine whether the “interest of justice”
demands a new trial under Rule 33. See United States v. Wall, 389 F.3d 457, 465 (5th Cir.
2004) (appellate review of district courts Rule 33 decision “is necessarily deferential to the
trial court”). The steady trickle of troubling revelations about the ongoing misconduct here
undermined “confidence in the jury verdict” even without an explicit connection between the
comments and the jury, or between the prosecutors and the case team, that McRae viewed
as indicative of prejudice.
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instructions not to obtain extrinsic information about the trial. For
defendants, for the cooperating defendants who testified for the government,
and for defense witnesses, however, there are no such restrictions. Only a naif
would think that these people, and their families and friends, were not avidly
consuming all available sources of information from the inception of the
prosecution through trial. Inflammatory and biased online comments to news
articles must have affected the participants’ approaches to their defense,
testimony, or decisions to testify. That there was some influence, although
unquantifiable under these circumstances, seems inescapable.
Most pernicious, these attorneys’ online comments knowingly
contributed to the mob mentality potentially inherent in instantaneous,
unbridled, passionate online discourse. These prosecutors created an air of
bullying against the defendants whose rights they, especially Dobinski, were
sworn to respect. That they were several among dozens of commenters, some
of whom may have disagreed with their views, does not dissipate the effect of
this online cyberbullying. Just as a mob protesting outside the courthouse has
the potential to intimidate parties and witnesses, so do streams of adverse
online comments. The impact is felt not only by the defendants but by
codefendants pressed to plead guilty or defense witnesses dissuaded from
testifying. Preventing mob justice is precisely the goal of prosecutorial ethical
constraints. The government here should not be able to shelter under a banner
of “no prejudice proved” while the prosecutors acted no better than, and indeed
tried to inflame, the public.
For all these reasons, we conclude that the district court did not err in
finding that the defendants were prejudiced by the government’s misconduct.
On this basis, too, the defendants are entitled to a new trial.
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The government also argues that official and professional discipline were
adequate to rebuke Perricone, Jan Mann, and Dobinski and should have
sufficed in lieu of a new trial. Like the district court, we disagree. To begin
with, whether those who committed misconduct were disciplined simply does
not bear on whether the defendants received a fair trial. It is clear from
Perricone, Mann, and Dobinski’s testimony, moreover, that none of them is
particularly remorseful about the misconduct, and they claimed to believe their
individual First Amendment rights were separable from their positions of
public trust. Perricone and Jan Mann both resigned from office with benefits
as far as the record shows, although they were referred for professional
discipline to the State Bar of Louisiana. Dobinski remains in federal
employment with only a bare reproof for her online commenting. Their
misdeeds are compounded by the government’s insouciant investigation, which
leaves open only three inferences concerning this prosecutorial breakdown:
the government is not serious about controlling extracurricular, employment-
related online commenting by its officials; the government feared what it might
uncover by a thorough and timely investigation; or the government’s
investigation was incompetent. Exerting professional discipline on three
individual government lawyers does nothing to solve the systemic problem,
and it is not a sufficient answer to the miscarriage of justice in this case.
II. Remove the Judge?
The government’s final appellate point asks this court to remove Judge
Engelhardt from this case, whatever its future course. Removal of a judge is a
rare and disfavored order. In re McBryde, 117 F.3d 208, 229 (5th Cir. 1997).
This court must be persuaded that the judge’s conduct “might reasonably cause
an objective observer to question [the judge’s] impartiality.” Johnson v.
Sawyer, 120 F.3d 1307, 1333 (5th Cir. 1997) (quoting United States v. Microsoft
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Corp., 56 F.3d 1448 (D.C. Cir. 1995) (per curiam)); Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 864-65, 108 S. Ct. 2194, 2205 (1988); 28 U.S.C.
§ 455(a); 28 U.S.C. § 455(a). Three considerations go into this decision:
whether the original judge would reasonably be able on remand to have
substantial difficulty in laying aside his previously expressed views or findings
that have been declared erroneous; whether reassignment is advisable to
preserve the appearance of justice; and whether the efficiency costs involved
in reassignment outweigh the benefits to the appearance of fairness. In re
DaimlerChrysler Corp., 294 F.3d 697, 700-01 (5th Cir. 2002).
Here, there is no basis for removing Judge Engelhardt for
conscientiously responding to these novel events as they unfolded. The district
court was outright skeptical over the defendants’ initial new trial motion
predicated on the Perricone revelations. Far from being a non-neutral arbiter,
as the government contends, the district court was pushed into novel territory
by ongoing revelations—that Perricone had spoken to the press before he had
been questioned by DOJ; that Jan Mann had allowed Letten to lie in the
district court’s face, and she had herself been commenting while purporting to
investigate the USAO commenting; that Perricone and Jan Mann seemed not
credible on salient points; and that Bernstein, chief prosecutor, kept narrowing
the scope of misconduct deliberately and artificially. The district court’s failed
confidence in the DOJ’s ability to reveal the impact of inappropriate
commenting led to the district court’s strong suggestion for an independent
DOJ review of Jan Mann’s “investigation.” This action was never challenged
in the district court as an invasion of constitutional separation of powers, and
the special investigator attempted to cooperate with the district court. The
district court carefully preserved the ex parte nature of much of this
investigation for several reasons, including the protection of DOJ employees
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during the pendency of a separate internal OPR inquiry. Finally, because we
have not found the district court’s findings erroneous or its conclusions inapt,
it would make little sense to remove Judge Engelhardt for doing what was
called for under the circumstances.
That Judge Engelhardt expressed his candid views about the
government’s highly disparate charges between cooperating defendants and
those who exercised their right to a jury trial does not provide grounds for
removal. Nor does his use of colorful language in his written opinions merit
the severe professional sanction of removal from this prosecution. Judge
Engelhardt’s stylistic choices were likely induced when words like “incredible”
and “novel” and “unprecedented” were no longer enough to describe the
ongoing revelations of the government’s misconduct and incomplete
investigation. Judge Engelhardt’s style is far outweighed by his thorough, fact-
driven approach. The government’s motion is meritless.
CONCLUSION
For the foregoing reasons, we find no abuse of discretion in the district
court's grant of a new trial to these five defendants. AFFIRMED;
REMANDED FOR TRIAL.
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EDWARD C. PRADO, Circuit Judge, dissenting:
I agree with the majority that the actions of the government attorneys 1
in this case demean the integrity of the judiciary and merit the most severe
sanctions. But we “cannot permit” these considerations “to alter our analysis,
for we are not at liberty to ignore the mandate” of the Federal Rules of Criminal
Procedure “in order to obtain ‘optimal’ . . . results,” Carlisle v. United States,
517 U.S. 416, 430 (1996). Because the majority opinion relies on extraordinary
facts to skirt ordinary procedure, I respectfully dissent.
Before this Court is an appeal of a new-trial order granted under Rule
33(b)(1) of the Federal Rules of Criminal Procedure. Rule 33 contemplates two
kinds of motions for new trial: one “grounded on newly discovered evidence,”
and one “grounded on any reason other than newly discovered evidence.” Fed.
R. Crim. P. 33(b). The former “must be filed within 3 years after the verdict or
finding of guilty,” whereas the latter “must be filed within 14 days after the
verdict or finding of guilty.” Id.
As the Eleventh Circuit has recognized, “courts apply different
standards” depending on whether the motion was filed within fourteen days or
after fourteen days.
The trial court’s power with respect to a motion made within
[fourteen] days is much broader than one made later than
[fourteen] days but within [three] years relying on newly
discovered evidence. For motions filed within [fourteen] days, a
court has very broad discretion in deciding whether there has been
a miscarriage of justice.
After the [fourteen] days, a much more stringent standard applies.
1 I use “the government attorneys” as shorthand for the handful of individuals in the
Eastern District of Louisiana U.S. Attorney’s Office and in the Department of Justice who
violated their ethical obligations and posted public comments about their cases on
NOLA.com. I do not mean to include the many diligent and ethical attorneys who worked in
the Office and the Department during this prosecution or who do so now.
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United States v. Hall, 854 F.2d 1269, 1270–71 (11th Cir. 1988) (alterations,
footnotes, citations, and internal quotation marks omitted) (citing, inter alia,
United States v. Rachal, 473 F.2d 1338, 1343 (5th Cir. 1973)); 2 see also Herrera
v. Collins, 506 U.S. 390, 409 (1993) (“We have strictly construed the Rule 33
time limits.”).
A district court is without authority to consider a Rule 33 motion based
on anything other than newly discovered evidence unless the motion is filed
within the fourteen-day period. See United States v. Brown, 587 F.2d 187, 190–
91 (5th Cir. 1979); 3 see also United States v. Campa, 459 F.3d 1121, 1154 (11th
Cir. 2006) (en banc) (“A court may not consider motions for new trial based on
any other argument than newly discovered evidence outside the [fourteen-day]
period.”). Here, the defendants were found guilty on August 5, 2011. Seven
days later, the district court granted them additional time to file a Rule 33
motion for a new trial, as contemplated by Rule 45. The defendants’ August 22,
2011, motions for a judgment of acquittal and a new trial were timely. On May
18, 2012, after it was revealed that members of the U.S. Attorney’s office were
commenting on NOLA.com, the defendants filed a new motion for a new trial
under Rule 33.
The question, therefore, is whether the district court could have
implicitly construed the defendants’ May 18, 2012, Rule 33 motion as a renewal
of their August 22, 2011, motions for a new trial in “the interest of justice.”
2 Several cases refer to the seven-day time period in the previous version of the Rule,
which was extended to fourteen days in 2009. Fed. R. Crim. P. 33 advisory committee notes.
3 Rule 33’s time limit for many years was considered jurisdictional, see, e.g., Brown,
587 F.2d at 189–90 (“A district court has no jurisdiction to consider a new trial motion filed
beyond the . . . time limit contained in Rule 33 . . . .” (footnote omitted)), but in 2005 the
Supreme Court clarified that Rule 33 is not a jurisdictional rule but a claim-processing one,
though “one that is admittedly inflexible,” Eberhart v. United States, 546 U.S. 12, 17–19
(2005) (per curiam). The effect of this change is that the nonmoving party must raise
untimeliness as an affirmative defense, id. at 19—which the Government did in this case,
both before the district court and here.
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Although the Fifth Circuit has not spoken on the matter, a robust circuit
consensus—encompassing every court to have considered the issue—supports
the conclusion that a later, untimely motion cannot relate back to, amend, or
renew an original, timely motion. See, e.g., United States v. Bramlett, 116 F.3d
1403, 1405 (11th Cir. 1997) (concluding that district courts have no power to
construe an untimely motion for a new trial as a renewal of a timely motion); 4
see also Fed. Crim. Rules Handbook pt. II ch. VII, Rule 33 (“A trial court cannot
construe a motion for new trial, filed outside the appropriate time period, as a
‘renewal’ of a prior motion . . . [or] consider new arguments raised in [such a
motion]. A court may not consider motions for new trial based on any other
argument than newly discovered evidence outside the time period.” (footnotes
and internal quotation marks omitted)). In other words, a defendant cannot
rely on the fact of having filed a motion that benefits from the broader,
“interests of justice” standard when filing a second motion outside the
fourteen-day statutory period; he is left with recourse only to the stricter
“newly discovered evidence” standard.
4 See also United States v. Gupta, 363 F.3d 1169, 1175–76 (11th Cir. 2004) (“[P]ost-
verdict renewed motions filed outside the seven-day period and any extension granted during
that period are untimely.”); United States v. Jones, 45 F. App’x 271, 272 (4th Cir. 2002) (per
curiam) (“[A] supplement [that] raised distinct issues from the issues raised in [the
defendant’s] original motion . . . cannot relate back to the original motion for timeliness
purposes.”); United States v. Henning, 198 F.3d 247, at *2 (6th Cir. 1999) (unpublished)
(“Untimely ‘renewed’ or ‘supplemental’ motions do not relate back to timely filed motions.”),
abrogated on other grounds by Apprendi v. New Jersey, 530 U.S. 466 (2000), as recognized in
United States v. Gonzalez, 420 F.3d 111, 123 (2d Cir. 2005); United States v. Moreno, 181 F.3d
206, 212 (2d Cir. 1999) (“Because this purported motion for a new trial was made far outside
the seven-day time limit, and there is no suggestion that the motion is based on newly
discovered evidence, it was untimely, and we lack jurisdiction to consider the defendants’
argument on appeal.”); United States v. Custodio, 141 F.3d 965, 966 (10th Cir. 1998) (“[A]
defendant may not add new arguments in support of a motion for new trial by including them
in an amendment filed after the time under Rule 33 has expired.”). But cf. United States v.
Cruz–Padilla, 227 F.3d 1064, 1067–68 (8th Cir. 2000) (treating an untimely amendment as
relating back where the written motion filed after the deadline “merely renewed [the
defendant’s earlier, timely] oral motion on the same grounds, upon which the district court
neglected to rule”).
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Therefore, in the present case, the district court had authority to
consider—and we have authority to review—only a motion for a new trial based
on newly discovered evidence. Neither the district court nor the majority
opinion has applied the appropriate standard:
In order to warrant a new trial on the basis of newly discovered
evidence, [the defendant] must demonstrate that
(1) the evidence is newly discovered and was unknown to the
defendant at the time of trial; (2) failure to detect the evidence
was not due to a lack of diligence by the defendant; (3) the
evidence is not merely cumulative or impeaching; (4) the
evidence is material; and (5) the evidence introduced at a new
trial would probably produce an acquittal.
Unless all factors are met, the motion should be denied.
United States v. Bowler, 252 F.3d 741, 747 (5th Cir. 2001) (per curiam)
(emphasis added) (quoting United States v. Lowder, 148 F.3d 548, 551 (5th Cir.
1998)). When the “evidence goes to the fairness of the trial rather than to the
question of guilt or innocence,” the standard is more burdensome still: a
defendant must show a “substantial possibility of prejudice.” United States v.
Williams, 613 F.2d 572, 573 (5th Cir. 1980) (emphasis added).
This is a stringent test, as well it should be: we have consistently stressed
that “[m]otions for a new trial based on newly discovered evidence are
disfavored and reviewed with great caution.” Bowler, 252 F.3d at 747 (citing
United States v. Gonzalez, 163 F.3d 255, 264 (5th Cir. 1998)). Indeed, we
recently observed that we knew of no case “in which an appellate court affirmed
the grant of a Rule 33 motion on grounds of prosecutorial misconduct unrelated
to confidence in the jury verdict, merely as a way to punish contemptuous
prosecutors.” United States v. Poole, 735 F.3d 269, 279 (5th Cir. 2013). We
noted that attorney misconduct, even in the face of ineffective punishment,
“[does] not give us license to make Rule 33 something it is not. A new trial
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remedy is inapposite to the harm where the putative ‘wrong’ has no effect on
our confidence in the verdict or the fairness of the trial.” Id. at 279 n.24.
The majority opinion, the district court’s order, and the defendant’s own
briefing all stray far from Rule 33(b)(1)’s narrow standard. Perhaps this is
because the defendants advance no credible argument that the newly
discovered evidence in this case—the identity of the commenters on
NOLA.com—would likely produce an acquittal.
The defendants devote only six pages of their 105-page brief to arguing
they were actually prejudiced by the government’s conduct; almost none of the
contentions in those pages relate to newly discovered evidence. The defendants
advance a “theory of government media manipulation,” leading to an
“overriding tenor of guilt in the community long before trial” and a “prejudicial,
poisonous atmosphere.” Although they assert that “[t]his ‘poisonous
atmosphere’ and concerted government misconduct had a substantial
deleterious effect on the fairness of appellees’ trial,” they fail to point to any
indication of actual prejudice resulting from newly discovered evidence, citing
instead to a student note for the proposition that “damaging media spin can
. . . be used to manipulate negotiation before trial—potentially driving
individuals to settle or accept a plea where they otherwise would pursue trial
on the merits.”
Fatally to the defendants’ claim, these arguments are not grounded in
newly discovered evidence—i.e., the identities of the commenters. Indeed, it is
difficult to see how this evidence could possibly have changed the outcome of
the proceedings. The district court conducted an extensive voir dire:
prospective jurors completed a lengthy questionnaire, and the district court
questioned both the venire panel as a whole and individual jurors in chambers.
Then, counsel for both parties questioned the jurors based on their answers to
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the questionnaires. Cf. Skilling v. United States, 561 U.S. 358, 387–92 (2010).
As the government notes, “[n]o defendant moved to strike for cause any juror
who actually sat on this case.” Throughout the trial, the district court
repeatedly instructed jurors to avoid media coverage. It is well settled that “[a]
jury is presumed to follow its instructions,” Weeks v. Angelone, 528 U.S. 225,
234 (2000), and the defendants have produced no evidence to rebut this well-
worn presumption. 5
Most importantly, the truth about Perricone’s postings came to light long
after judgment was entered in this case. Therefore, even if the jurors had
disregarded the court’s instructions and read articles on NOLA.com during the
trial (we must presume the contrary); even if they had bothered to read the
user-generated comments on this public website; and even if they had paid
particular attention to the comments posted under Perricone’s or Mann’s
aliases, they still would not have known they were receiving impermissible
information from a source within the U.S. Attorney’s Office. The post-verdict
discovery of the posters’ identities does not change this conclusion, 6 which
proves fatal to the defendants’ claim.
5 After the identities of the posters came to light, the district court decided its voir dire
was “flawed and insufficient.” The court reached this conclusion primarily because the voir
dire questionnaires indicated that seven of the twelve jurors had visited NOLA.com and the
jurors who did not visit NOLA.com tended to agree more strongly with the statement “NOPD
officers tend to be honest” than did jurors who were familiar with the site. Id. This is a thin
reed on which to build an argument for a new trial. As the government notes, this is too small
a sample to reach a statistical conclusion. See Mayor of Phila. v. Educ. Equal. League, 415
U.S. 605, 621 (1974). Indeed, the district court did not find this conclusion significant at the
outset of the trial. And, as discussed further in note 14, infra, the district court declined to
conduct a post-trial hearing to see whether any of the jurors read articles about this case, let
alone the comments, on NOLA.com.
6 This Court recently reached the same conclusion in a similar case arising from the
online misconduct by lawyers in the U.S. Attorney’s Office, United States v. McRae, No. 14-
30995, 2015 WL 4542651 (5th Cir. July 28, 2015). In my view, McRae applied an
appropriately narrow frame of inquiry. The majority opinion notes the important differences
between McRae and the present case. Ante at 41 & n.27. I write only to express that here, as
in McRae, we cannot presume prejudice. McRae, 2015 WL 4252651, at *6–8, slip op. at. 15–
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The majority opinion reaches a contrary holding. 7 It asserts that this
case defies Rule 33 harmless-error analysis because the district court could not
possibly conduct a sufficiently thorough investigation into the extent of any
prejudice. But this renders the standard meaningless. A party is not exempted
from proving prejudice merely because it is difficult. On the contrary, a
defendant who fails to show prejudice is simply not entitled to a new trial under
Rule 33, regardless of the severity of the underlying misconduct. Courts cannot
18. “Without connecting the online comments to the jury, the new evidence does not call into
question the integrity of its verdict.” Id. at *7, slip op. at 15.
7 Although the majority opinion holds in the alternative that there was prejudice in
this case, its reasoning sweeps far beyond the scope of Rule 33(b)(1): it addresses allegations
that the government “pressured cooperating defendants to seek plea deals and then to shade
their testimony against the others” and made “threats of perjury charges against defense
witnesses, which had never materialized.” Ante at 39. It also looks to harm that “extends not
just to jurors but others involved in the case,” such as cooperating defendants and witnesses.
Id. at 42–43. But these examples fail to persuade: the district court could have examined the
role of plea bargaining, witness tampering, and intimidation had the defendants briefed these
matters in their original Rule 33 motions filed shortly after the verdict. They did not. And on
the basis of the arguments actually advanced by the defendants, the district court found that
a new trial was not warranted. To the extent that the defendants and the majority opinion
cite these practices now as evidence of prejudice, their efforts are unavailing for the simple
reason that this evidence is not newly discovered—the only ground for relief invoked by the
defendants under Rule 33(b)(1).
The majority opinion also finds prejudice based on “the mob mentality potentially
inherent in instantaneous, unbridled, passionate online discourse,” ante at 43. It remarks:
“That [the government attorneys] were several among dozens of commenters, some of whom
may have disagreed with their views, does not dissipate the effect of this online
cyberbullying.” Id. The trouble is, the majority opinion fails to show why voir dire was
inadequate to insulate the jury from the purported effects of these comments. Nor does it
point to portions of the record that show how or why a different outcome might obtain on
retrial. Invoking the amorphous specter of social media and cyberbullying—in the district
court’s words, an “online 21st century carnival atmosphere,” ante at 2—is insufficient to free
defendants of their obligation to prove that the verdict would probably be different.
In sum, instead of requiring the district court to follow our ordinary procedure for
proving prejudice, the majority concludes: “That there was some influence, although
unquantifiable under these circumstances, seems inescapable.” Ante at 43. This is not enough
to support a new trial based on newly discovered evidence. See Bowler, 252 F.3d at 747;
United States v. Riley, 544 F.2d 237, 241 (5th Cir. 1976) (“The likelihood of changing a jury’s
decision must rise considerably above the level of speculation in order to justify a new trial.”
(emphasis added)).
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throw up their hands in dismay at the size of the task. 8 Neither we nor the
district courts in our circuit may ignore our obligation to apply established
rules to the record before us.
Rather than engage in ordinary Rule 33 analysis, the majority opinion
discards the established standard and opts for the hybrid-error formulation in
footnote nine of Brecht v. Abrahamson, 507 U.S. 619 (1993). I see why the
majority finds the Brecht standard alluring: it allows the court to consider
allegations of witness intimidation and disparate sentencing practices walled
off from our inquiry under a Rule 33 motion for newly discovered evidence. 9
8 The district court expressly declined to hold an evidentiary hearing to determine the
extent of prejudice in this case—offering instead to do so only on remand. December 12 Order
and Reasons, at 21 (“Were the Fifth Circuit to agree [that the motion was granted in error],
it might well determine that an evidentiary hearing indeed should be held, as was this
Court’s initial inclination.”). In fact, although the district court agreed that “obvious
questions remained unanswered,” it held out further evidentiary proceedings as a sort of
threat should the government appeal: “[F]urther pursuit of testimony and other evidence
likely would result in more material revelations confirming the aggressive online activity of
DOJ personnel in causing this prosecution to become a cause célèbre in this community, and
in the DOJ.” Id. at 22. The district court itself acknowledged that a thorough post-verdict voir
dire would help determine the extent of any prejudice, id., (“[T]he same type of thorough,
searching questions employed during the voir dire process . . . would have to be asked of the
jurors and key trial witnesses”), and it even suggested some questions it might ask:
[W]hether [the individuals] read particular news articles and/or the comments
to the articles on Nola.com during the long timespan pertinent here and, if so,
how often; whether they read or were aware of the particular Nola.com
postings at issue here; whether they can remember with certainty if they read
or were aware of any of the postings at issue here; whether during times
relevant they discussed the news articles or comments published on Nola.com
even if they did not personally read them; whether they or anyone close to them
ever posts or blogs online; and what their opinion is, if any, of persons who do
post or blog online.
Id. at 22–23. Nevertheless, the district court declined to hold such a hearing. See id. Thus, as
the majority seems to accept, the record before us is necessarily devoid of evidence of the
impact, if any, of the postings on the jury.
9 I do not find the government’s charging practice as outrageous as the majority does:
offering a reduced charge or sentence to a collaborating coconspirator is commonplace in the
federal system. Rarely, if ever, is it grounds for a new trial. See, e.g., United States v. Cawley,
481 F.2d 702, 709 (5th Cir. 1973) (declining to grant a new trial where the defendant alleged
newly discovered evidence that an indicted coconspirator was never charged despite self-
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But I am not persuaded that the Brecht standard is cognizable in this
procedural posture.
First, this Court cannot sua sponte apply Brecht and ignore Rule 33: we
lack authority to affirm a new trial granted without a proper motion. Brown,
587 F.2d at 189 (noting that a district court “is powerless to order a new trial
except on the motion of the defendant”). The only motion presented to the
district court and properly before us is one grounded on newly discovered
evidence under Rule 33(b)(1). Second, neither the majority opinion nor the
district court has sought to harmonize Brecht’s hybrid-error formulation with
our longstanding five-prong standard for granting a new trial under Rule
33(b)(1). The only logical explanation is that the standards are irreconcilable.
Rule 33(b)(1) contemplates a limited inquiry: once the defendant has identified
the newly discovered evidence and demonstrated due diligence, relevance, and
materiality, the court must look to the prejudicial effect of the omission on the
proceedings, as discernible from the record on appeal. See Bowler, 252 F.3d at
747. By contrast, Brecht error was first proposed in a habeas corpus
proceeding. See Brecht, 507 U.S. at 622, 638 n.9. Courts engaging in collateral
review have authority to conduct hearings and collect additional evidence; they
are not limited by the record on appeal nor by the requirement that evidence
of prejudice be newly discovered. Although I would not foreclose the possibility
that a court could analyze Brecht error on direct appeal via a motion for a new
trial grounded on reasons other than newly discovered evidence under Rule
33(b)(2), I am hesitant to be the first court in the country to find Brecht error
in this procedural posture.
incriminating testimony at trial and noting that the government “has wide discretion in
determining whether a prosecution against a particular individual shall be commenced or
maintained”); see also United States v. Scroggins, 379 F.3d 233 (5th Cir. 2004); cf. United
States v. Prout, 526 F.2d 380 (5th Cir. 1976).
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In sum, I would conclude that the district court abused its discretion in
granting a new trial. The district court erred in not applying our established
Rule 33(b)(1) standard, and the defendants have not carried their heavy
burden to prove that “the evidence introduced at a new trial would probably
produce an acquittal,” Bowler, 252 F.3d at 747. In holding otherwise, the
majority opinion puts us at odds with binding Fifth Circuit precedent as well
as authority from our sister circuits.
It is a fundamental tenet of our legal system that neutral rules must be
applied evenly to all. We do not—and indeed we cannot—interpret the Federal
Rules of Criminal Procedure differently based on the character of the
defendant or the circumstances surrounding his trial. The government
attorneys acted deplorably in this case, and their punishment has been
unconscionably mild. But a new trial is not the proper remedy on the record
before us. I respectfully dissent.
48