United States v. Kenneth Bowen
799 F.3d 336
5th Cir.2015Background
- Five former NOPD officers were federally indicted for the Danziger Bridge shootings and alleged cover-up; trials resulted in convictions and lengthy sentences, but defendants moved for new trials based on post-verdict revelations.
- High-level DOJ attorneys (Sal Perricone, Jan Mann, and Karla Dobinski) anonymously posted inflammatory comments on Nola.com about the prosecution, defense counsel, and NOPD during the pendency of the case.
- The USAO initially denied broader internal involvement; investigations by USAO and DOJ were incomplete, delayed, and in some respects evasive, frustrating the district court’s factfinding.
- The district court found multiple prosecutorial irregularities (anonymous online commenting, press leaks, witness coercion/intimidation concerns, inconsistent cooperating-witness testimony, and disparate plea bargaining/sentencing) and granted new trials under Fed. R. Crim. P. 33.
- The government appealed, arguing (inter alia) that Rule 33(b)(1)’s newly discovered‑evidence standard and the requirement to prove prejudice preclude a new trial; it also sought the district judge’s disqualification.
- The Fifth Circuit affirmed the district court: (1) concluded the misconduct was so pervasive and the government’s obfuscation so obstructive that the case fit within the Supreme Court’s Brecht hybrid‑error exception (footnote 9), and (2) alternatively found actual prejudice from the cumulative misconduct; it denied removal of the judge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether anonymous online posts by DOJ attorneys warranted a new trial | Online postings by high-level prosecutors created pervasive prejudice and a "carnival" atmosphere that compromised fairness; government’s evasive investigation prevented measurement of harm | Identity alone doesn’t prove prejudice; anonymity reduces authoritative effect; Rule 33 requires newly discovered evidence plus prejudice for a post‑14‑day motion | Affirmed: postings (with DOJ’s delays/obfuscation and cumulative misconduct) were extraordinary and fit Brecht’s hybrid‑error exception; new trial not an abuse of discretion |
| Applicability of Rule 33(b)(1) (newly discovered evidence) v. Brecht hybrid‑error relief | District court may apply Brecht hybrid‑error doctrine where misconduct is sui generis and inquiry is obstructed, so prejudice need not be shown precisely | Government: post‑verdict motions must satisfy Rule 33(b)(1) five‑prong test, including that new evidence probably would produce acquittal; cannot sidestep Rule 33 timing/standards | Held: Brecht footnote 9 contemplates hybrid errors; where misconduct is pervasive and government prevents assessment of prejudice, the court may grant new trial without traditional proof of specific prejudice; alternative holding: prejudice shown anyway |
| Whether the government’s alleged other prosecutorial abuses (leaks, witness coercion, plea/sentencing disparities) cumulatively required a new trial | These systemic practices and failures to investigate undermined confidence in verdict and interacted with online misconduct to prejudice defendants | Government: many of these claims are not newly discovered, or are insufficiently connected to verdict; disciplinary remedies suffice | Held: District court’s factual findings (largely uncontested) supported a conclusion that cumulative misconduct prejudiced defendants and reinforced the Brecht‑level remedy |
| Whether Judge Engelhardt must be disqualified on remand | Government argued judge’s strong opinions and language showed bias | Defense/trial court: judge acted transparently and within discretion in response to evolving revelations; candid findings were fact‑based | Held: Denied. No reasonable observer would question judge’s impartiality; removal unwarranted |
Key Cases Cited
- Brecht v. Abrahamson, 507 U.S. 619 (1993) (recognizes possibility that especially egregious trial‑type error or pattern of prosecutorial misconduct may warrant relief even absent proof of substantial influence on verdict)
- Berger v. United States, 295 U.S. 78 (1935) (prosecutor’s duty to seek justice and refrain from improper methods)
- Kotteakos v. United States, 328 U.S. 750 (1946) (harmless‑error and substantial‑and‑injurious‑effect framework)
- Burgess v. Dretke, 350 F.3d 461 (5th Cir. 2003) (describing Brecht footnote 9 errors as hybrid and not amenable to harmless‑error review)
- Harbin v. State, 250 F.3d 532 (7th Cir. 2001) (error defying harmless‑error analysis; recognized as analogous precedent for unquantifiable prejudice)
- United States v. Bowler, 252 F.3d 741 (5th Cir. 2001) (per curiam) (Rule 33(b)(1) five‑prong newly discovered‑evidence test)
- United States v. Mann, 161 F.3d 840 (5th Cir. 1998) (standard of review: district court findings of fact reviewed for clear error)
- Cupit v. Whitley, 28 F.3d 532 (5th Cir. 1994) (discussion of structural and trial errors)
- Skilling v. United States, 561 U.S. 358 (2010) (pretrial publicity and prejudice principles referenced by government)