United States v. Bowen, 082015 FED5, 13-31078

Docket Nº:13-31078
Opinion Judge:EDITH H. JONES, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellant v. KENNETH BOWEN; ROBERT GISEVIUS; ROBERT FAULCON; ANTHONY VALLAVASO; ARTHUR KAUFMAN, Defendants-Appellees
Judge Panel:Before JONES, CLEMENT, and PRADO, Circuit Judges. EDWARD C. PRADO, Circuit Judge, dissenting:
Case Date:August 20, 2015
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellant

v.

KENNETH BOWEN; ROBERT GISEVIUS; ROBERT FAULCON; ANTHONY VALLAVASO; ARTHUR KAUFMAN, Defendants-Appellees

No. 13-31078

United States Court of Appeals, Fifth Circuit

August 20, 2015

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 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 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 announcing that fact. The district court ordered the government to attempt to find the leak, but the order bore no fruit.

Concomitantly, commenters on the website for the New Orleans Times Picayune vigorously debated the significance of the case and the guilt of the individual perpetrators and the entire New Orleans Police Department. The indictments were handed down on July 12, 2010, the trial occurred over a two week period from late June to early July 2011, and the defendants were found guilty on nearly all counts. There is no dispute that the district court conducted a thorough and conscientious jury voir dire based on the information known at the time.2

During the interim between the verdict and sentencing, events reflecting shocking breaches of prosecutorial ethics were revealed and then compounded by further breaches. To make a very long story short, the district court was led on a "legal odyssey" by the government that began in March 2012 when another target of federal investigation in New Orleans discovered that a high-ranking Assistant United States Attorney, Senior Trial Counsel Sal Perricone, had been posting comments to Nola.com under multiple assumed names.3Perricone'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." 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.

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 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...

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