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

CourtUnited States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
Writing for the CourtKURT D. ENGELHARDT
Citation969 F.Supp.2d 546
Docket NumberCriminal Action No. 10–204.
Decision Date17 September 2013
PartiesUNITED STATES of America v. Kenneth BOWEN, Robert Gisevius, Robert Faulcon, Anthony Villavaso, Arthur Kaufman, Gerard Dugue.

969 F.Supp.2d 546

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.

Sept. 17, 2013.


[969 F.Supp.2d 548]


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

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


ORDER AND REASONS

KURT D. ENGELHARDT, District Judge.

Before the Court is the Motion for New Trial (Rec. Doc. 963) originally urged by defendant Arthur Kaufman, and joined in by the other defendants in this matter who were tried and convicted in 2011 (hereinafter referred to as “Defendants” or “the defendants).1 The government opposes this motion. (Rec. Doc. 1007.) The Court heard oral argument on the defendants' motion on June 13, 2012 (Rec. Doc. 1020). A detailed recounting of subsequent events is set forth in this Court's Order and Reasons dated November 26, 2012 (Rec. Doc. 1070). As an expected result of that Order, the Court is in receipt of additional information 2 to which it was not privy at the time of its last Order. With such information and for the reasons stated herein, IT IS ORDERED that Defendants' motion is GRANTED.

For ease of reference, the following sets forth a “Table of Contents” for review of this Order:

TABLE OF CONTENTS


Page

I.

INTRODUCTION

549


II.

BACKGROUND: PART ONE—MAY 18, 2012 TO NOVEMBER 26, 2012

552


III.

BACKGROUND: PART TWO—NOVEMBER 26, 2012 TO PRESENT

554
A.

Special Attorney to the Attorney General–John Horn's Assignment

554
B.

Departures from the USAO

555
C.

The Horn Report of January 25, 2013

555
D.

The March 29, 2013 Supplement to the Horn Report

557
E.

Further Inquiry of the Court, and the May 15, 2013 Meeting

561
F.

Second Supplemental Report of May 20, 2013

564
G.

Third Supplemental Report Dated June 17, 2013

566
H.

Fourth Supplemental Report Dated June 25, 2013

566


IV.

STATEMENT OF ISSUES

567
A.

The Government's Opposition to Defendants' Motion

567
B.

Questions Raised

567


V.

GOVERNING LAW

568
A.

Fundamental Guiding Principles

568
B.

Laws Governing Conduct of Prosecutors

568
C.

Law Governing Motions For New Trial

574


VI.

THE MISCONDUCT

578
A.

Former USAO Senior Litigation Counsel Sal Perricone

578
B.

“Dipsos”

583
a.

The “Taint Team” Leader

583
b.

The Kastigar Rulings

586
c.

“Dipsos” on Nola.com

586
C.

An On–Line 21st Century “Carnival Atmosphere”

588
D.

Sworn Testimony of Former First AUSA Jan Mann

603
E.

Pre–Trial and Trial Concerns

608
1.

The Government's Pre–Trial Timeline

608
2.

FBI Agent Bezak's Explanation of the Credibility of NOPD Witnesses

610
3.

Perricone's View of the FBI and the Potential Source of Rule 6(e) Leaks

610
4.

Testimony of Cooperating Government Witnesses, and the Refusal of Defense Witnesses to Testify

611
(a)

Hunter

612
(b)

Hills

612
(c)

Barrios

613
(d)

Lehrmann

613
(e)

Haynes, Tollefson, and Gore

614


VII.

ANALYSIS

615
A.

Timeliness

615
B.

Due Process

617
C.

Prejudice

619
a.

Government Pressure

619
b.

Influence on Jurors

621
c.

Potential Influence on Witnesses

622
D.

Evidentiary Hearing

623
E.

Disposition

624


VIII.

CONCLUSION

627

[969 F.Supp.2d 549]

I. INTRODUCTION

With a history of unprecedented events and acts, consideration of the defendants' motion has taken the Court on a legal odyssey unlike any other. With the relatively recent advent of the age of cyberspace and social media/networking, courts have anticipated a myriad of issues and potential controversies. This Court is unaware of any case, however, wherein prosecutors acting with anonymity used social media to circumvent ethical obligations,

[969 F.Supp.2d 550]

professional responsibilities, and even to commit violations of the Code of Federal Regulations. Hence, to the Court's knowledge, there is no case similar, in nature or scope, to this bizarre and appalling turn of events.

From the landfall of Hurricane Katrina on August 29, 2005, the subsequent failure of the levees surrounding the City of New Orleans resulting in massive and severe flooding of the metropolitan area, the exodus/evacuation of hundreds of thousands of people from southeast Louisiana both before and after August 29, 2005; the outbreak of intense and wide-spread civil unrest and the response of the New Orleans Police Department (“NOPD”), including the tragic events on the morning of September 4, 2005, in which two civilians were killed and others injured, some severely, by NOPD gunfire; the aborted prosecution in state court,3 the United States Department of Justice's (“DOJ”) active take-over 4 of this case in 2008, followed by this federal indictment on July 12, 2010; the multi-week trial during the summer of 2011, followed by the separate mistrial of severed defendant Dugue in January 2012; the noteworthy sentencing of the defendants to mandatory consecutive minimums; 5 and the later discovery of disturbing online misconduct of the government throughout, the Court has dutifully attempted to negotiate all the twists and turns in order to apply fundamental bedrock principles in achieving the result here. In particular, the Court notes that the issue of prosecutorial misconduct involving at least two high-ranking members of the United States Attorney's Office for the Eastern District of Louisiana (USAO) has not been dispositively addressed by

[969 F.Supp.2d 551]

this Court, or any other, in a case where the defendants went to trial. Although other sections of this Court have encountered the misconduct of improper online posting by these two federal prosecutors in other cases,6 such issues have heretofore been raised only by defendants who had already entered guilty pleas, admittedly establishing all of the essential elements of the crimes for which they pled guilty and were sentenced. This case, however, involves at least one more posting prosecutor, and postings both significantly higher in quantity, and more egregious and inflammatory in quality, given the tone, timing, and identities of persons posting, than has been seen in prior cases.

In considering the present motion, which was filed on May 18, 2012, the Court has continued to receive more and more information albeit in the fashion of slowly peeling layers of an onion. During this time, the Court has remained ever cognizant of multiple factors, including: the sanctity of this jury's verdict and the undesirability of upsetting it; the consumption of resources by the government and the defendants in preparing to try this matter in 2011; the cost in financial and other resources in staging this trial; the efficient use of judicial resources; the substantial interest in achieving finality; and last, but certainly not least, the heavy emotional toll that the trial, and subsequent proceedings, have taken on the victims and their families, as well as the defendants and their families. Further, the undersigned has spent countless hours considering these factors against the backdrop of the longstanding integrity and respect afforded the United States criminal justice system and courts, and the special role of prosecutors, especially federal prosecutors from the Department of Justice acting in the name of the people of the United States of America. Try as it might to reconcile all of these interests, in light of the facts set forth, the Court is unable to achieve a disposition contrary to the one reached here, and most assuredly does not take such action lightly. Quite simply, in the most general sense, traditional notions and concepts of criminal justice cannot be served by minimizing such misconduct and preserving a verdict under these peculiar circumstances.

The Court is, of course, also very cognizant that, on September 4, 2005, two men died, while three others were seriously injured, under tragic circumstances at the hands of some of the defendants herein, and that the state court criminal justice system was corrupted to the prejudice of at least one victim, Lance Madison. Mr. Madison's riveting testimony—both at trial and at sentencing—is surely not soon forgotten. Indeed, it echoes in this case, making the abuses set forth herein all the more astonishing. This case started as one featuring allegations of brazen abuse of authority, violation of the law, and corruption of the criminal justice system; unfortunately, though the focus has switched from the accused to the accusers, it has continued to be about those very issues. After much reflection, the Court cannot journey as far as it has in this case only to ironically accept grotesque prosecutorial misconduct in the end.

For the most part, the Court will attempt herein to simply continue the chronology set forth in its Order and Reasons dated November 26, 2012 (which the Court considers and refers to as “PART ONE” of this saga), although some of the events described herein must necessarily be placed on the existing overall timeline in order to reflect the important context as it relates to this case. Additionally, as an

[969 F.Supp.2d 552]

exordium, the Court believes it prudent, for the sake of clarity, to first provide a brief summary of Part One.

At this juncture, the most precious commodities are candor and credibility, both of which seem to be in short supply, despite the best efforts of this Court and a couple of federal prosecutors from Georgia. But for the Court's disposition today, a detailed evidentiary hearing would be certain, and would be the only way to ascertain the entirety of facts surrounding these exploits and uncover the further extent of misdeeds herein. As will be explained, however, the Court does not find taking that likely arduous route to be necessary. In short, despite the many remaining questions that would have great bearing on the subject motion, the Court believes more than sufficient grounds exist warranting the disposition set forth herein.

II. BACKGROUND: PART
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16 practice notes
  • State v. Thomas, NO. 34,042
    • United States
    • New Mexico Supreme Court of New Mexico
    • June 20, 2016
    ...media use has led to numerous allegations of misconduct by participants in our legal system. See, e.g. , United States v. Bowen , 969 F.Supp.2d 546, 625–27 (E.D. La. 2013) (granting the defendants' motion for a new trial on the basis of prosecutorial misconduct in posting online comments un......
  • United States v. Bowen, No. 13–31078.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 18, 2015
    ...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).BACKGROUNDA federal grand jury returned a 25–count ind......
  • United States v. McRae, No. 14–30995.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 28, 2015
    ...is simple: the ego of the prosecutor over rode his judgment.”13 The postings are discussed in more detail in United States v. Bowen, 969 F.Supp.2d 546, 589–603 (E.D.La.2013).14 United States v. McRae, 702 F.3d 806, 818 (5th Cir.2012).15 Id. at 811.16 Id.17 Id. See also id. at 832–40.18 Id. ......
  • United States v. Bowen, No. 13-31078
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 18, 2015
    ...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-......
  • Request a trial to view additional results
16 cases
  • State v. Thomas, NO. 34,042
    • United States
    • New Mexico Supreme Court of New Mexico
    • June 20, 2016
    ...media use has led to numerous allegations of misconduct by participants in our legal system. See, e.g. , United States v. Bowen , 969 F.Supp.2d 546, 625–27 (E.D. La. 2013) (granting the defendants' motion for a new trial on the basis of prosecutorial misconduct in posting online comments un......
  • United States v. Bowen, No. 13–31078.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 18, 2015
    ...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).BACKGROUNDA federal grand jury returned a 25–count ind......
  • United States v. McRae, No. 14–30995.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 28, 2015
    ...is simple: the ego of the prosecutor over rode his judgment.”13 The postings are discussed in more detail in United States v. Bowen, 969 F.Supp.2d 546, 589–603 (E.D.La.2013).14 United States v. McRae, 702 F.3d 806, 818 (5th Cir.2012).15 Id. at 811.16 Id.17 Id. See also id. at 832–40.18 Id. ......
  • United States v. Bowen, No. 13-31078
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 18, 2015
    ...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-......
  • Request a trial to view additional results

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