United States v. Pratt

• Decision Date: 13 November 2015
• Docket Number: No. 14–30940.,14–30940.
• Citation: 807 F.3d 641
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Renee Gill PRATT, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

807 F.3d 641

UNITED STATES of America, Plaintiff–Appellee,

v.Renee Gill PRATT, Defendant–Appellant.

No. 14–30940.

United States Court of Appeals, Fifth Circuit.

Nov. 13, 2015.

Kevin G. Boitmann, Asst. U.S. Atty. (argued), Diane Hollenshead Copes, Esq., Asst. U.S. Atty., Daniel P. Friel, Esq., Asst. U.S. Atty., U.S. Attorney's Office, New Orleans, LA, for Plaintiff–Appellee.

Michael Seth Fawer, Esq. (argued), Smith & Fawer, Covington, LA, for Defendant–Appellant.

Appeal from the United States District Court for the Eastern District of Louisiana, USDC No. 2:08–CR–140–4.

Before KING, DENNIS, and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

A jury convicted Defendant–Appellant Renee Gill Pratt (Pratt) of conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act,¹ and this court affirmed the conviction on appeal.² Pratt then filed a motion for a new trial, citing revelations that a prosecutor in the U.S. Attorney's Office had posted disparaging comments about her online while her trial was underway. Pratt appeals the district court's denial of this motion, contending that the prosecutor's misconduct entitled Pratt to a presumption of juror prejudice. We affirm.

I

This case emerged from a broad federal investigation of a prominent Louisiana family. Pratt was a Louisiana state representative from 1991 to 2002 and a member of the New Orleans City Council from 2002 to 2006.³ She was also the longtime companion of Mose Jefferson, who was a political organizer and brother of former Congressman William Jefferson. The indictment alleged that Pratt and her co-defendants—three members of the Jefferson family—conspired to direct grants and other government funding to charitable organizations under their control for their personal benefit. After two co-defendants pleaded guilty and a third developed health problems, prosecutors proceeded to trial against Pratt alone. The first trial resulted in a hung jury, but Pratt was convicted following a second trial in July 2011. This court affirmed the conviction in August 2013.⁴

While Pratt's appeal was pending, the U.S. Attorney's Office for the Eastern District of Louisiana (USAO) admitted that over the course of several years, one of its prosecutors had posted online comments on a range of matters in which the office was involved.⁵ An internal investigation and litigation in other cases revealed that two other attorneys, one from the USAO and one from Justice Department headquarters, had authored dozens of other online comments.⁶ These anonymous comments were posted onnola.com, the website of the widely-read New Orleans Times–Picayune, and appeared below articles on the site interspersed with comments from other readers.

Salvador Perricone was responsible for the vast majority of the discovered comments, including all but two of those potentially relevant here. Perricone, an Assistant U.S. Attorney at the USAO with the title of Senior Litigation Counsel,⁷ posted his views on many aspects of Louisiana politics under a variety of pseudonyms. A number of the posts were "long tirades against the Jefferson family in general," while others specifically referred to Pratt's case. While Pratt's first trial was underway, for example, Perricone commented: "If Pratt walks, it's the judge's victory. It will be a sad day for justice." When a mistrial was declared, Perricone opined that the holdout juror "failed to honor her oath" and insinuated that she did so because of her race. The day before the jury began its deliberations in Pratt's second trial, Perricone posted another comment critical of Pratt. Although Perricone was not involved in Pratt's prosecution, he was the lead prosecutor during an earlier trial of Mose Jefferson for bribery. An investigation by the Justice Department's Office of Professional Responsibility did not find proof that Perricone's supervisors were aware of his online commenting at the time, but a judge in a related case found what he considered circumstantial evidence to the contrary.⁸ An AUSA expressed his concern to three mid-level supervisors that Perricone was responsible for certain comments onnola.com, but he did not share that concern with the U.S. Attorney or the First Assistant U.S. Attorney.

The other two anonymous comments related to Pratt's case were posted by Jan Mann, the USAO's First Assistant U.S. Attorney and chief of its Criminal Division. Mann's two comments—which were posted while Pratt's first appeal was pending—proclaimed Pratt's guilt, defended Pratt's sentence, and characterized Pratt as driven by greed.⁹

Once the prosecutors' anonymous online commenting was exposed, Pratt moved for an evidentiary hearing and a new trial based on newly discovered evidence. She argued that Perricone's comments were designed to incite public prejudice against her and added that Perricone "almost certainly" acted with the approval of Mann. Cases of serious prosecutorial misconduct, Pratt argued, may so pollute a criminal prosecution as to require a new trial. Pratt asserted that six of the twelve jurors reported getting their news from the Internet, and two of them volunteered thatnola.com was among their sources of news. Pratt sought a broad evidentiary hearing to determine whether Perricone's supervisors condoned his anonymous commenting, whether any other employees of the USAO were commenting anonymously, and whether the jurors were prejudiced by exposure to the online comments or various leaks of confidential information.

In June 2014, the district court heard argument on the pending motion. The court considered the law governing orders for a new trial based on newly discovered evidence, as well as proceedings in related cases arising out of Perricone's anonymous commenting. It then announced its intention to hold a limited evidentiary hearing to "develop[ ] a clearer record" of any influence the anonymous comments may have had on Pratt's trial. That hearing, it said, would take the form of a questionnaire submitted to the two jurors who had identifiednola.com as among their sources of news. Counsel were invited to submit proposed questions or submit proposals as to the scope of the hearing; Pratt renewed her request for "further investigation" into the misconduct at issue, but the court demurred. The two jurors reported no exposure to thenola.com comments before or during Pratt's trial.

Based on this information, the district court denied Pratt's motion for a new trial, citing a "lack of evidence that the jury's verdict was tainted in any way by Perricone's or anyone else's comments." Addressing Pratt's argument that the misconduct was so extraordinary that no finding of prejudice was required, the court echoed this court's recent holding that a new trial is a means to avoid injustice, not to punish the government's contempt.¹⁰ The completed questionnaires, the district court reasoned, revealed that the jurors "heeded the Court's instructions to avoid extraneous materials in reaching their verdict" and accordingly, there was no indication that the integrity of the verdict was compromised. Pratt timely appealed.

II

We review a district court's order denying a motion for a new trial for abuse of discretion.¹¹ Questions of law are reviewed de novo, "but the district court's findings of fact must be upheld unless they are clearly erroneous."¹²

Federal Rule of Criminal Procedure 33 provides that the court may vacate a judgment and grant a new trial "if the interest of justice so requires."¹³ Rule 33 motions are "disfavored" and reviewed with "great caution."¹⁴ Defendants seeking a new trial based on newly discovered evidence ordinarily must show (among other things) that the evidence is material and "would probably produce an acquittal" if introduced in new proceedings.¹⁵

However, Rule 33 motions are sometimes based on the "fairness of the trial" rather than the "question of guilt or innocence."¹⁶ In such cases, the inquiry turns on whether the newly discovered evidence "afford[s] reasonable grounds to question ... the integrity of the verdict."¹⁷ For a new trial to be warranted, the court "must ... normally find that the misconduct in question actually prejudiced the defense."¹⁸ Indeed, we have cautioned that "a new trial is not a mechanism for punishing contempt, by a prosecutor or otherwise, but a way to avoid injustice generally and to avoid a jury verdict for which one has compromised confidence specifically."¹⁹

A panel of this court, however, recently recognized a significant but rarely applicable exception to the rule that the demonstration of prejudice is a prerequisite for the grant of a new trial. In United States v. Bowen, the panel relied on Brecht v. Abrahamson to conclude that some errors are "capable of infecting the integrity of the prosecution to a degree warranting a new trial irrespective of prejudice."²⁰ In Brecht, after determining which harmless-error standard applies on habeas review when a conviction marred by "trial error" is at issue, the Supreme Court stated: "[I]n 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" that a grant of habeas relief is warranted "even if it did not substantially influence the jury's verdict."²¹ The Bowen panel reasoned that in this circuit, the "hybrid" errors described by Brecht "require reversal regardless of harm,"²² and concluded that Brecht 's logic was equally applicable in the context of a Rule 33 motion for a new trial.²³

The panel's decision in Bowen arose in response to the same online commenting scandal underlying Pratt's case. It is one of two cases recently decided by this court that frame the issue of when a presumption of prejudice is warranted. The defendants in Bowen were police officers convicted of shooting unarmed civilians on the Danziger Bridge in New Orleans six days after Hurricane Katrina.²⁴ The officers were the focus of...