     Case: 13-31078        Document: 00513393145        Page: 1   Date Filed: 02/23/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                       No. 13-31078



UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellant

v.

KENNETH BOWEN; ROBERT GISEVIUS; ROBERT FAULCON;
ANTHONY VALLAVASO; ARTHUR KAUFMAN,

                                                  Defendants-Appellees


                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                            USDC Nos. 2:10-CR-204-1-5


                    ON PETITION FOR REHEARING EN BANC
                       (Opinion August 18, 2015, 799 F.3d 336)

Before JONES, CLEMENT, and PRADO, Circuit Judges. ∗
PER CURIAM:

      Treating the petition for rehearing en banc as a petition for panel
rehearing, the petition for panel rehearing is DENIED. The court having been
polled at the request of one of its members, and a majority of the judges who
are in regular active service and not disqualified not having voted in favor


      ∗
          Judge Stephen A. Higginson is recused in this case.
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                                No. 13-31078

(FED. R. APP. P. 35 and 5TH CIR. R. 35), the petition for rehearing en banc is
DENIED.

      In the en banc poll, 7 judges voted in favor of rehearing (Chief Judge
Stewart, and Judges Davis, Dennis, Prado, Southwick, Graves, and Costa), and
7 judges voted against rehearing (Judges Jolly, Jones, Smith, Clement, Owen,
Elrod, and Haynes).
ENTERED FOR THE COURT:




_________________________________
EDITH H. JONES
United States Circuit Judge
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                                  No. 13-31078


PRADO, Circuit Judge, joined by STEWART, Chief Judge, DAVIS, DENNIS,
SOUTHWICK, GRAVES, and COSTA, Circuit Judges, dissenting from Denial
of Rehearing En Banc,
      Six days after Hurricane Katrina made landfall, a group of heavily-
armed New Orleans police officers opened fire on eight unarmed black
pedestrians near the Danziger Bridge in New Orleans, Louisiana, killing two
and wounding four. Among the victims was a mentally disabled man who was
shot in the back as he tried to escape. In the weeks that followed, the officers
orchestrated an elaborate cover-up, planting evidence and framing one of the
surviving victims for the shooting. The officers were eventually indicted and
convicted on numerous federal civil rights and firearms charges and sentenced
to lengthy terms of imprisonment.
      Nearly a year after their conviction, the officers filed a motion for new
trial based on newly discovered evidence under Federal Rule of Criminal
Procedure 33(b)(1). To affirm the district court’s grant of a new trial under Rule
33(b)(1), the majority opinion goes to great lengths to stretch dicta from
footnote nine of Brecht v. Abrahamson, 507 U.S. 619 (1993), beyond the habeas
context. The Government’s petition for rehearing in this case does not merely
involve a reasonable disagreement about how to resolve a close legal dispute.
Rather, it presents an important issue of first impression—the importation of
habeas doctrine into our Rule 33 case law, specifically, the extension of Brecht’s
footnote nine to a motion for new trial under Rule 33(b)(1). Yet, our Court was
prevented from taking this case en banc by a deadlocked, 7–7 vote. Because
the majority opinion ignores long-standing Rule 33 precedent and fails to
adequately distinguish our opinions in United States v. McRae, 795 F.3d 471
(5th Cir. 2015), and United States v. Poole, 735 F.3d 269 (5th Cir. 2013), I
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strongly believe this case is worthy of our full Court’s attention and therefore
respectfully dissent from denial of rehearing en banc.
      To succeed under a Rule 33(b)(1) motion for new trial, the officers needed
to present newly discovered evidence that was not introduced at their original
trial. Fed. R. Crim. P. 33(b)(1). The officers also needed to demonstrate that
failure to introduce this evidence caused them prejudice, such that if their
newly discovered evidence was “introduced at a new trial [the evidence] would
probably produce an acquittal.” United States v. Bowler, 252 F.3d 741, 747 (5th
Cir. 2001) (alteration in original) (quoting United States v. Lowder, 148 F.3d
548, 551 (5th Cir. 1998)). Our Court has also recognized a corollary to this
requirement where the “newly discovered evidence would ‘afford reasonable
grounds to question . . . the integrity of the verdict.’” United States v. Williams,
613 F.2d 573, 575 (5th Cir. 1980) (quoting S. Pacific Co. v. Francois, 411 F.2d
778, 780 (5th Cir. 1969)). The officers are unable to meet either of these
requirements.
      The only newly discovered evidence at issue is the identity of three
anonymous commenters on Nola.com, the Times-Picayune’s website. Under
anonymous pseudonyms, two Assistant United States Attorneys and an
attorney from the Civil Rights Division of the Department of Justice posted
comments on Nola.com about the Danziger Bridge shooting and the
prosecution of the officers involved. But there is no indication that their
identities were known to the jury at the time of the trial. Even if the jurors had
disregarded the court’s instructions and read articles on NOLA.com during the
trial (we must presume they did not, see Weeks v. Angelone, 528 U.S. 225, 234
(2000)); had bothered to read the user-generated comments on any of the
articles; and had paid particular attention to the comments posted under the
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Government attorneys’ aliases, they still would not have known they were
receiving impermissible information from a Government source.
      The district court was undoubtedly aware that this case had attracted
intense media attention and was aware of coverage by the Times-Picayune,
including articles posted to Nola.com. In fact, the court specifically asked jurors
about this coverage and whether they visited the website. As a result of the
district court’s diligence, “[t]here is no dispute that the district court conducted
a thorough and conscientious jury voir dire based on the information known at
the time.” United States v. Bowen, 799 F.3d 336, 340–41 (5th Cir. 2015)
(majority opinion).
      The majority also spends a great deal of ink discussing prosecutorial
misconduct committed post-verdict, focusing on misrepresentations made to
the district court during proceedings related to the officers’ Rule 33(b)(1)
motion. But this conduct, simply as a matter of chronology, could not have had
any effect on the verdict. As the officers have failed to demonstrate that any
newly discovered evidence has actually prejudiced them, their motion fails
under either of the well-settled categories of Rule 33(b)(1).
      Unsatisfied with this outcome, the majority invents a new form of post-
conviction relief in which a Rule 33(b)(1) motion can be granted without any
showing of prejudice or effect on the jury’s verdict. The majority opinion creates
this new category by importing dicta in footnote nine of Brecht to completely
erase the requirement that the newly discovered evidence must have had some
actual effect on the jury’s verdict.
      In Brecht, the Supreme Court held that petitioners cannot receive relief
from a writ of habeas corpus based on trial error unless they have
demonstrated that the error actually prejudiced the petitioner. 507 U.S. at 637.
Dicta in footnote nine of Brecht left open the possibility that in a future,
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particularly egregious case involving trial error habeas relief could be granted
without a showing of prejudice. The majority opinion not only thinks that they
have found such a case but that the Supreme Court intended this exception to
apply to motions for new trial under Rule 33(b)(1). Even assuming that the
facts of this case would fit within the scope of footnote nine, which I believe is
a questionable assumption, the majority fails to adequately demonstrate why
or how habeas case law applies to a Rule 33(b)(1) motion.
      Even more concerning is the fact that the majority’s opinion opens the
door for further extension of Brecht’s footnote nine. Calling the misconduct
here “sui generis,” Bowen, 799 F.3d at 351–52, regardless of whether one agrees
with that characterization, will not discourage lawyers and judges from
drawing on Bowen in future cases to claim that prejudice is not required or
that Brecht’s footnote nine applies in other procedural postures. Even if future
courts never grant a Rule 33(b)(1) motion due to Brecht error again, dealing
with such a fact-intensive inquiry will take valuable time and judicial
resources. Further, the majority’s importation of Brecht’s footnote nine into our
Rule 33 case law opens the door for additional expansion of Rule 33 by
importing other habeas doctrines into Rule 33(b)(1) motions, blurring the line
between direct and collateral review. Because I believe that this extension is
unwarranted, creates tension in our case law, and opens the door to continued
expansion of Rule 33, I respectfully dissent from denial of rehearing en banc.
