United States v. McRae

• Citation: 702 F.3d 806
• Decision Date: 17 December 2012
• Docket Number: 11–30529.,Nos. 11–30345,s. 11–30345
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Gregory McRAE; David Warren, Defendants–Appellants. United States of America, Plaintiff–Appellant, v. Travis McCabe, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

702 F.3d 806

UNITED STATES of America, Plaintiff–Appellee,

v.Gregory McRAE; David Warren, Defendants–Appellants.

United States of America, Plaintiff–Appellant,

v.Travis McCabe, Defendant–Appellee.

Nos. 11–30345, 11–30529.

United States Court of Appeals, Fifth Circuit.

Dec. 17, 2012.

Holly A. Thomas (argued), Jessica Dunsay Silver, App. Sec., Jared H. Fishman, Civ. Rights Div., U.S. Dept. of Justice, Washington, DC, Tracey Nicole Knight, Asst. U.S. Atty., New Orleans, LA, for Plaintiff–Appellee.

William Reagan Wynn (argued), Kearney Wynn, Fort Worth, TX, Frank G. DeSalvo, New Orleans, LA, Julian R. Murray, Jr. (argued), Chehardy, Sherman, Ellis, Murray, Recile, Griffith, Stakelum & Hayes, L.L.P., Richard T. Simmons, Jr. (argued), Hailey, McNamara, Hall, Larmann & Papale, L.L.P., Metairie, LA, for Defendants–Appellants in No. 11–30345.

James Michael Small, Law Offices of J. Michael Small, Alexandria, LA, Michael Allyn Stoud (argued), Wiener, Weiss & Madison, A.P.C., Shreveport, LA, for Defendant–Appellee in No. 11–30529.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before JOLLY, HIGGINBOTHAM and DENNIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This case tells one of the nightmarish stories that arose from Hurricane Katrina in 2005—the physical devastation, human diaspora, and struggle of the City to maintain some semblance of law and order, and, in the chaos, a horrific failure of law enforcement. The case also demonstrates again the axiom that a cover-up, with its domino effect, begets more tragedy than the crime. It indeed presents a grim vignette within the larger Katrina story, told here in terms of legal consequences.

The three appellant former policemen were convicted in the same trial—conducted from November 8 to December 9, 2010—largely on separate facts but all arising from the death of one citizen, Henry Glover. Thus, this opinion will set out the facts and the issues raised on appeal in three separate parts.

The jury convicted David Warren, a former officer in the New Orleans Police Department (“NOPD”), of one count of depriving Glover of his right to be free from the use of unreasonable force by a law enforcement officer, in violation of 18 U.S.C. § 242, and one count of carrying, using, and discharging a firearm in furtherance of a felony crime of violence resulting in an individual's death, in violation of 18 U.S.C. § 924(c) and (j). The district court imposed a sentence of 189 months of imprisonment on the first count of convictionand 120 months on the second count of conviction, to run consecutively, for a total term of imprisonment of 309 months. Warren challenges his convictions and sentence on various grounds. We hold that, because Warren has demonstrated that he suffered specific and compelling prejudice as a consequence of the district court's refusal to sever his trial from that of the other defendants, the district court abused its discretion in denying Warren's repeated motions to sever under Federal Rule of Criminal Procedure 14(a). As a result, we VACATE Warren's convictions and sentences and REMAND for a new trial.

The jury also convicted Gregory McRae, another former NOPD officer, of one count of depriving William Tanner of the right to be free from an unreasonable seizure by a law enforcement officer, in violation of 18 U.S.C. § 242, one count of denying Glover's descendants and survivors the right of access to courts to seek legal redress for a harm, in violation of 18 U.S.C. § 242, one count of obstruction of a federal investigation, in violation of 18 U.S.C. § 1519, and one count of use of fire to commit a felony, in violation of 18 U.S.C. § 844(h). The district court imposed concurrent sentences of 87 months for each of the convictions under 18 U.S.C. §§ 242 and 1519, and a consecutive 120–month sentence for the conviction under 18 U.S.C. § 844(h), for a total of 207 months of imprisonment. McRae challenges his convictions under 18 U.S.C. §§ 242 and 1519 on various grounds and his sentence under 18 U.S.C. § 844(h) on double jeopardy grounds. We hold that the evidence is insufficient to support McRae's conviction for denying Glover's descendants and survivors the right of access to courts, and we therefore REVERSE and VACATE that conviction. We AFFIRM McRae's other convictions, reject his double jeopardy challenge, and REMAND for re-sentencing.

Finally, the jury convicted Travis McCabe, a third former NOPD officer, of one count of obstruction of a federal investigation, in violation of 18 U.S.C. § 1519, one count of making false statements to the FBI, in violation of 18 U.S.C. § 1001, and one count of making false statements to a grand jury, in violation of 18 U.S.C. § 1623. The district court later vacated these convictions and granted McCabe a new trial because of newly-discovered evidence. In McCabe's case, the government appeals. We hold that the district court did not abuse its discretion in granting McCabe a new trial, and we therefore AFFIRM that order.

I.

A.

Thus, once again, we have cause to revisit the effects on human life wrought by Hurricane Katrina. Briefly, the storm made landfall over the Louisiana coast due east of New Orleans at approximately 6:00 AM on Monday, August 29, 2005. Although the City of New Orleans weathered the storm, for the most part, intact, the subsequent breaches of levees surrounding the City caused devastating flooding and resulted in widespread destruction of property, loss of human life, and evacuation of the City.

1.

At the time, David Warren was a rookie patrol officer with the NOPD, having graduated from the police academy in May 2004. Although Warren was not scheduled to be on duty at the time of the hurricane's projected landfall, because he was unsure whether he would be able to return to the City and report for duty, he stayed at his home in the Algiers section of the City during the storm, while his family evacuated to safety. Once the storm passed, Warren attempted to report to work at the Seventh District station in east New Orleans—his assigned district—but that area of the City had suffered devastating flooding. Instead, Warren reported to the Fourth District, which was the district in which his residence was located in Algiers. That area of the City, on the west bank of the Mississippi River, had suffered considerably less flooding because of its higher elevation. From the time he first reported to duty until Friday, September 2, 2005—the day of the wretched and ghoulish events of this prosecution—Warren testified he was assigned various duties, ranging from roving patrols to guarding certain locations and businesses in the Fourth District. Officers were working twelve-hour shifts during those days. When not on duty, Warren testified that he patrolled his own neighborhood, which had experienced looting.

On September 2, 2005, Warren reported to the Fourth District station at 6:00 AM to receive his assignment for that day. He and Officer Linda Howard were assigned to guard the offices—or substation—of the Fourth District's District Investigative Unit (“DIU”) at a shopping center on General De Gaulle Drive. The DIU offices, which had been damaged during the storm, contained the papers and files of the detectives of the Fourth District. Warren and Officer Howard left the Fourth District station and headed to the shopping center, stopping first at Warren's residence.

After arriving at the shopping center, Warren and Officer Howard took a brief tour downstairs and then walked upstairs to the DIU offices. The front of the shopping center looks onto General De Gaulle Drive; the back of the shopping center looks onto a parking lot that abuts Seine Street, which runs parallel to General De Gaulle Drive. Texas Drive intersects Seine Street and General De Gaulle Drive. Officer Howard testified that the gates on the first and second floors breezeways, which looked out onto the back parking lot area, were locked with chains. Warren testified that neither gate was locked, and that he, in fact, went out on the balcony on the second floor overlooking the back parking lot when they first arrived at the shopping center.

Approximately thirty minutes after their arrival, Warren and Officer Howard noticed a man on a bicycle riding up and down the area in the front of the shopping center. At this point, four days removed from Hurricane Katrina's landfall, the city was nearly deserted due to the mandatory evacuation orders. Warren testified that the man kept gazing in their direction, and after he bicycled up the street the fifth time, Warren fired a warning shot in the man's direction with his personal rifle, which Warren had been carrying with him on duty since the storm passed. He testified that, because it was merely a warning shot, he did not aim anywhere near the man.

At some point later, Warren heard noises coming from the back of the shopping center. He testified that he walked through the gate and onto the back balcony to see from where the noise was originating. He saw two females, later identified as Brandie Williams and her sister-in-law Katherine, pushing a shopping cart, filled with suitcases, from the rear entrance of the Tuesday Morning store in the shopping center. Warren asked the women if that was their property in the shopping cart. They responded no, prompting Warren to order them to leave the cart and exit the area. The women obeyed his order and left the area.

On their way back to nearby apartments, the two women ran into Glover and Bernard Calloway. Williams had been staying with her cousin Mickey and Glover, who was Mickey's boyfriend, in their apartment. Calloway was the boyfriend of Glover's sister, Patrice Glover; they too lived in nearby apartments. Without running water, electricity, or food, the family had decided that morning to evacuate. Williams testified that, during their conversation, she asked Glover and Calloway if they would go to the shopping center...