United States v. Bowen, Criminal Action No. 10–204.

• Decision Date: 26 November 2012
• Docket Number: Criminal Action No. 10–204.
• Citation: 969 F.Supp.2d 518
• Parties: UNITED STATES of America v. Kenneth BOWEN, Robert Gisevius, Robert Faulcon, Anthony Villavaso, Arthur Kaufman, Gerard Dugue.
• Court: U.S. District Court — Eastern District of Louisiana

969 F.Supp.2d 518

UNITED STATES of America

v.Kenneth BOWEN, Robert Gisevius, Robert Faulcon, Anthony Villavaso, Arthur Kaufman, Gerard Dugue.

Criminal Action No. 10–204.

United States District Court,

E.D. Louisiana.

Nov. 26, 2012.

Barbara Bernstein, Christopher Lomax, Cindy K. Chung, Thomas E. Perez, U.S. Department of Justice, Washington, DC, Theodore R. Carter, III, U.S. Attorney's Office, New Orleans, LA, for United States of America.

Rachel I. Conner, Rachel I. Conner, Attorney at Law, Virginia Laughlin Schlueter, Federal Public Defender, New Orleans, LA, Robin Elise Schulberg, Robin Elise Schulberg, Attorney at Law, Covington, LA, for Kenneth Bowen.

Christopher Albert Aberle, Christopher A. Aberle, Attorney at Law, Mandeville, LA, for Robert Gisevius.

Lindsay A. Larson, III, King, Krebs & Jurgens, PLLC, New Orleans, LA, for Robert Faulcon.

Roger W. Kitchens, DeSalvo, Blackburn & Kitchens, Timothy Allison Meche, Timothy A. Meche, Attorney at Law, New Orleans, LA, for Anthony Villavaso.

Stephen David London, Stephen D. London, Attorney at Law, Ian Lewis Atkinson, William P. Gibbens, Schonekas, Evans, McGoey & McEachin, LLC, New Orleans, LA, for Arthur Kaufman.

Claude John Kelly, III, Claude J. Kelly, Attorney at Law, Michael W. Hill, Law Offices of Michael W. Hill, LLC, New Orleans, LA, for Gerard Dugue.

ORDER AND REASONS

KURT D. ENGELHARDT, District Judge.

Before the Court is the Motion for New Trial (Rec. Doc. 963) urged originally by defendant Arthur Kaufman, and joined in by the other defendants in this matter.¹ The motion is opposed by the government (Rec. Doc. 1007).

PART I

I. Underlying Facts

After a multi-week jury trial, Defendants Bowen, Gisevius, Faulcon, Villavaso, and Kaufman, all former officers of the New Orleans Police Department (NOPD), were found guilty on August 5, 2011, of multiple counts of a 25–count redacted indictment.² The charged crimes arose from police activity following Hurricane Katrina, specifically shootings on or around the Danziger Bridge in New Orleans, and subsequent attempts to falsify reports and/or make false statements to authorities in order to cover up what had happened on the morning of September 4, 2005.

Bowen was found guilty of Counts 1, 2, 3, 4, 5, 6, 7, 10, 11, 12, 13, 19, and 20; Gisevius was found guilty of Counts 1, 2, 3, 4, 5, 6, 7, 11, 12, 13 and 21; Faulcon was found guilty of Counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12 and 22; Villavaso was found guilty of Counts 1, 2, 3, 4, 5, 6, 7, 11, 12 and 23; and Kaufman was found guilty of Counts 11, 12, 13, 14, 15, 16, 17, 18, 24, and 25.

Certain Defendants sought post-trial relief on various counts, and some convictions were vacated as follows: Defendant Bowen was granted relief, pursuant to Rules 29 and alternatively 33, as to Count 10; Defendants Bowen, Gisevius, Faulcon and Villavaso as to Count 12; and Defendants Bowen and Gisevius as to Count 13.

II. The Subject Motion For New Trial³

In the subject motion for new trial, Defendants argue that the government:

engaged in a secret public relations campaign against defendant Kaufman and his codefendants. As a result of these efforts, the government ensured that “Danziger” would become the household name for corruption in the New Orleans Police Department, that public opinion would be inflamed against the defendants, and that the government's version of the facts would be well known before anyone set foot in a courtroom.

(Rec. Doc. 963, p. 1, ¶ 1). Defendants additionally contend that various unidentified “law enforcement sources” and “sources close to the investigation” improperly disclosed to the media the government's theories regarding Defendants' alleged guilt, including activities of the federal grand jury, the identities of targets, the status of plea negotiations, and other sensitive confidential information that became widely known publicly before trial. Defendants further allege that, in addition to these activities, former Assistant United States Attorney (“AUSA”) Senior Litigation Counsel Salvador Perricone, then a high-ranking supervisory attorney in the Eastern District of Louisiana (EDLA), surreptitiously posted opinions and criticisms online on the public web page “nola.com”, which is affiliated with the New Orleans Times Picayune newspaper, to undermine the trial itself by making comments, both before and during the trial, that mocked the defense, attacked the defendants and their attorneys, were approbatory of the United States Department of Justice (“DOJ”), declared the defendants obviously guilty, and discussed the jury's deliberations.⁴ Asserting that the government's efforts to impact Defendants' right to a fair trial is “shocking and unprecedented” (Rec. Doc. 963, p. 2, ¶ 4), Defendants offer several illustrations of such conduct in their memorandum, focusing in part on the rearraignment and plea bargain of former NOPD Lieutenant Michael Lohman, a key cooperating witness who testified at trial. Lohman's rearraignment occurred on February 24, 2010, before United States District Judge Ivan Lemelle, who even then expressed concern over the fact that Lohman's impending plea had already been reported in the news media the day before the hearing, despite the entry of a court-ordered seal of the record on February 5, 2010. United States v. Michael Lohman, USDC–EDLA No. 10–32 “B” (Rec. Doc. 5). The premature report also raised concerns pursuant to Rule 6(e) of the Federal Rules of Criminal Procedure regarding grand jury secrecy. The specific postings referenced by Defendants and other grounds for relief sought are set forth in Kaufman's memorandum submitted in support of his motion for new trial. (Rec. Doc. 963–1). Defendants seek an evidentiary hearing to establish the basis for their assertions. Id.

In response, the government denies any wrongdoing by its personnel, and asserts that Defendants' claims are not “backed by any evidence.” (Rec. Doc. 1007, p. 14). Apparently attempting to mitigate what obviously was a breach of then-Magistrate Judge Louis Moore and Judge Lemelle's court orders, the government further asserts that, in any event, Lohman's plea would eventually become known publicly, and therefore refers to the violation of the seal as “a one day leak.” Id. at p. 17. Insofar as Senior Litigation Counsel AUSA Perricone's misconduct is concerned, the government simply states that that matter has “been referred to the Department of Justice Office of Professional Responsibility for review”, and asserts that “the possibility that Perricone might have violated his employer's ethics rules [does not] have any effect on the Danziger Bridge matter.” Id. at p. 20.

III. The June 13, 2012 Hearing and SubmissionsA. The Hearing

On June 13, 2012, the Court held a hearing, consisting of oral argument, regarding Defendants' motion.⁵ At the hearing, the Court expressed serious concerns regarding any violation of Rule 6 generally, and/or the sealing orders in the Lohman matter. (June 13, 2012 Transcript, pp. 33–37, 42–45). Following argument by DOJ prosecutor Barbara Bernstein ⁶, United States Attorney Jim Letten ⁷ addressed the Court:

First of all, Your Honor is absolutely correct in wanting, I think, to focus institutionally in some way in order to get a response from someone in authority, and that's me as the United States Attorney for the Eastern District of Louisiana, as to whether or not we, the government, authorized, procured, aided, produced or made any leaks of any protectedinformation whatsoever. (June 13, 2012 Transcript, p. 37, l. 21–p. 38, l. 4).

Letten also addressed the Lohman matter and denied that the government was the source of any leak regarding the Lohman plea. Id. at pp. 38–39. Lastly, he spoke regarding the Perricone matter:

In terms of Perricone, Judge, I will tell you right now on the record that I didn't—I've said this publically before, neither I, nor Jan Mann, nor people in positions in 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. ( Id. at p. 40, l. 7–14).

First Assistant United States Attorney Jan Mann was present and seated at counsel's table with U.S. Attorney Jim Letten.

At the conclusion of the hearing, the Court ordered the government to compile and produce a report, within 14 days, indicating all steps that it had taken, to date, to investigate and discern the source of the leaks that were referred to at the June 13th hearing. (June 13, 2012 Transcript, p. 44, l. 2–p. 45, l. 24; June 13, 2012 Minute Entry, Rec. Doc. 1020). The Court instructed that these efforts should be “significant steps”, and further stated:

I would like that report to be categorical. It need not be lengthy but I would like to know event by event what was done to discern the source of the leaks that are referred to in these documents.⁸ It should also include government personnel, including, but not limited to, Mr. Perricone and his contact with others in terms of this subject matter. It should be categorical in its denial. ( Id. at p. 44, l. 19–p. 45, l. 11).

Considering the defendants' request for an evidentiary hearing, and the Court's desire to avoid what could well become a mere futile scavenger hunt, the Court ordered Defendants to submit a specific description and plan for the evidentiary hearing sought, including then-anticipated witness testimony, and what Defendants and the Court could expect to learn from the hearing. (June 13, 2012 Transcript, pp. 46–47). The Court emphasized that Defendants indeed had “a tough road to hoe” before being granted an evidentiary hearing, and “a much tougher, steeper road to hoe before we get to any Rule 33 relief.” ( Id. at p. 46).

In so ruling, the Court figured it could then evaluate the government's efforts at truly preserving the integrity of the...