REVISED August 20, 2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-31078

UNITED STATES OF AMERICA,

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 

United States Court of Appeals

Fifth Circuit

FILED

August 18, 2015

Lyle W. Cayce

Clerk

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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 

 

1 Another defendant’s case was severed and separately tried. See United States v. 

Dugue, ___F.3d ___.

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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 highranking 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.

3 Perricone’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. 

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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.”

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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).

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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 

 

6 Defense 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

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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. 

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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 

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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 

 

7 At the time, Jim Mann was the supervisor of the USAO’s Financial Crimes and 

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.

9 Again, 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.

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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.

12 Officer Bowen testified before a grand jury pursuant to a court order granting him 

use immunity. Dobinski’s duty was to ensure that during the later federal prosecution, this 

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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). 

13 See the district court’s Order and Reasons dated December 12, 2013 at pp.8-12, 

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.

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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.

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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 

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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.

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17

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 

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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 

 

16 The court added significant excerpts from OPR materials, plus a caution, with which 

we agree, that OPR materials still under seal are also revelatory.

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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.

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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 postverdict 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 

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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 policies19 and 

(c) court and state bar rules of professional conduct.20 The government 

acknowledges that besides his postings in this case, Perricone posted 

 

18 See 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).

20 See 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.

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“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.

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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 

 

22 The district court also cited its supervisory power. This ground for relief is disputed 

by the government, and we neither discuss nor rely on it.

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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’ 

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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[]”).

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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 

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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).

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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 

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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 

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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 

 

25 The 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.

26 Although 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).

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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 

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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, employmentrelated 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, factdriven 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 attorneys1

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]ostverdict 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 wellworn 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.

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