United States v. Travis McCabe, 702 F.3d 806

Hurricane Katrina aftermath; Warren shot Glover and was involved in subsequent events including beating of Tanner and King, disposal and burning of Tanner’s car and Glover’s body, and a federal investigation into civil-rights violations.
Three former NOPD officers (Warren, McRae, McCabe) were tried together on multiple counts arising from Glover’s death; Warren and co-defendants moved for severance and joinder challenges were ruled on by the district court.
McRae was convicted on several counts including denying Glover’s descendants’ access to courts, seizing Tanner’s car, obstructing a federal investigation, and using fire to commit a felony; one count was reversed on appeal.
McCabe was convicted on obstruction and false-statement counts; the district court granted a new trial based on newly discovered evidence, which the government challenged on appeal.
On appeal, the Fifth Circuit vacated Warren’s convictions and remanded for a new trial, reversed McRae on one count (denying access to courts) but affirmed others, and affirmed the district court’s order granting McCabe a new trial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Proper joinder under Rule 8(b)?	Warren argues misjoinder; facts show linked acts.	Government contends a series of connected acts justifies joinder.	Joinder proper under Rule 8(b) due to linked, continuing sequence of acts.
Denial of severance under Rule 14(a)?	Warren suffered compelling prejudice from inflammatory co-defendant evidence.	Joint trial favored for efficiency; limiting instructions should cure prejudice.	District court abused discretion; severance warranted; Warren’s convictions and sentences vacated and remanded.
Sufficiency of McRae’s conviction for denying access to courts?	Evidence supported backward-looking denial-of-access theory.	No identifiable nonfrivolous underlying claim and lost remedy shown.	Insufficient evidence; reversed on Count Five.
§1519 obstruction mens rea and vagueness as applied to McRae?	§1519 requires knowledge/intent about the investigated matter; McRae argues vagueness.	Statute allows knowledge or contemplation of a matter; not clearly plain error.	No plain error; §1519 not clearly requiring knowledge of federal nature; conviction affirmed.
Double jeopardy and §844(h) sentence for McRae?	Concurrent/felony structure may violate double jeopardy.	Congress intended multiple punishments for overlapping conduct.	No double jeopardy; sentence sustained but remanded for overall sentencing clarity.

Dennis, 645 F.2d 517 (5th Cir. Unit B 1981) (joinder may be proper without a conspiracy charge when acts are a unified series)
Zafiro v. United States, 506 U.S. 534 (1993) (joint trials preferred; severance when prejudice is severe)
Harrelson, 754 F.2d 1153 (5th Cir. 1985) (test for relatedness of offenses for Rule 8(b) joinder)
Cortinas, 142 F.3d 242 (5th Cir. 1998) (severance warranted when evidence against co-defendants is highly inflammatory and not probative of codefendant’s guilt)
Erwin, 793 F.2d 656 (5th Cir. 1986) (reversal when co-defendants’ inflammatory evidence prejudices a defendant to a degree warranting severance)