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               IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT


                                           No. 14-30940
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit

                                                                                     FILED
UNITED STATES OF AMERICA,                                                    November 13, 2015
                                                                                Lyle W. Cayce
                    Plaintiff–Appellee,                                              Clerk

v.

RENEE GILL PRATT,

                    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



         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
          *

be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
          1   18 U.S.C. § 1962(d).
          2   United States v. Pratt, 728 F.3d 463 (5th Cir. 2013), cert. denied, 134 S. Ct. 1328
(2014).
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                                      No. 14-30940
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



       3  Counsel for the defendant uses “Gill Pratt” as her surname, while the Government
simply uses “Pratt.” We adopt the latter convention here for consistency with this court’s
2013 decision.
        4 Pratt, 728 F.3d at 482.
        5 See Office of Professional Responsibility, Department of Justice, Investigation of

Allegations of Professional Misconduct Against Former Assistant United States Attorneys
Salvador        Perricone     and     Jan      Mann       2     (2013)    (OPR      Report),
http://theadvocate.com/news/neworleans/neworleansnews/11990897-123/see-the-full-justice-
department.
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                                       No. 14-30940
from Justice Department headquarters, had authored dozens of other online
comments. 6 These anonymous comments were posted on nola.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




       6  United States v. Bowen, 799 F.3d 336, 342-43, 346 (5th Cir. 2015) (describing
comments posted by Jan Mann, First Assistant U.S. Attorney at the USAO, and Karla
Dobinski, trial attorney in the Justice Department’s Civil Rights Division).
       7 OPR Report at 2, 8.
       8 United States v. Bowen, 969 F. Supp. 2d 518, 531 (E.D. La. 2012), aff’d, 799 F.3d 336

(5th Cir. 2015).
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                                     No. 14-30940
Perricone was responsible for certain comments on nola.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 that nola.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,


      9   OPR Report at 42 (reproducing comments posted in November 2011).
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                                      No. 14-30940
would take the form of a questionnaire submitted to the two jurors who had
identified nola.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 the
nola.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




       10 See United States v. Poole, 735 F.3d 269, 278 (5th Cir. 2013).
       11 United States v. Wall, 389 F.3d 457, 465 (5th Cir. 2004) (citing United States v.
O’Keefe, 128 F.3d 885, 893 (5th Cir. 1997)).
       12 United States v. Bowen, 799 F.3d 336, 349 (5th Cir. 2015) (citing United States v.

Mann, 161 F.3d 840, 860 (5th Cir.1998)).
       13 FED. R. CRIM. P. 33(a).

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                                       No. 14-30940
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


       14  United States v. Turner, 674 F.3d 420, 429 (5th Cir. 2012) (quoting United States v.
Severns, 559 F.3d 274, 280 (5th Cir. 2009)).
        15 Wall, 389 F.3d at 467; see FED. R. CRIM. P. 33(b)(1).
        16 United States v. Williams, 613 F.2d 573, 575 (5th Cir. 1980) (citing United States v.

Jones, 597 F.2d 485, 488 (5th Cir. 1979)); see also Bowen, 799 F.3d at 349 (citing 3 CHARLES
ALAN WRIGHT & SARAH N. WELLING, FEDERAL PRACTICE AND PROCEDURE § 588, at 448 (4th
ed. 2011)) (stating that newly discovered evidence “need not relate only to guilt or innocence,
but may be relevant to any controlling issue of law”).
        17 Williams, 613 F.2d at 575 (quoting S. Pac. Co. v. Francois, 411 F.2d 778, 780 (5th

Cir. 1969)).
        18 Bowen, 799 F.3d at 356 (citing United States v. Bowler, 252 F.3d 741, 747 (5th Cir.

2001)).
        19 United States v. Poole, 735 F.3d 269, 278 (5th Cir. 2013).
        20 Bowen, 799 F.3d at 353 (citing Brecht v. Abrahamson, 507 U.S. 619, 638 n.9 (1993)).

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                                       No. 14-30940
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 a number of
vituperative comments posted anonymously by Perricone. 25 Bowen, however,
was a remarkable case, because of other alleged misconduct at issue. 26 In
addition to Perricone, the leader of the prosecutors’ “taint team” also
anonymously posted comments on nola.com while the trial was underway. 27
The Government’s response to the district court’s inquiry into the anonymous




       21 Brecht, 507 U.S. at 638 n.9.
       22 Bowen, 799 F.3d at 352 (citing Burgess v. Dretke, 350 F.3d 461, 471 (5th Cir. 2003)).
       23 Id. at 355 n.26.
       24 Id. at 339.
       25 Id. at 340-41.
       26 See generally id. at 340-48; United States v. Bowen, 969 F. Supp. 2d 546, 578-615

(E.D. La. 2013), aff’d, 799 F.3d 336 (5th Cir. 2015).
       27 Bowen, 799 F.3d at 349-51. The responsibility of the “taint team” was to review

evidence provided to prosecutors to ensure it was not tainted by the officers’ compelled
testimony. Id. at 345 & n.12.
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                                   No. 14-30940
comments was “incomplete, dilatory, and evasive.” 28 A wide range of other
misconduct was at issue as well. Specifically, the district court found that an
FBI agent assigned to the case had “threatened a potential defense witness,”
that prosecutors threatened to try three potential defense witnesses for perjury
if they testified, that prosecutors called a witness whose testimony was
“inconsistent and incredible,” and that plea deals offered to some defendants
resulted in a “stark” sentencing disparity between those who cooperated and
those who did not. 29
      In affirming the district court’s grant of a new trial, the panel
acknowledged that the district court’s reasons for granting a new trial were
“novel and extraordinary.” 30        “[T]he full consequences of the federal
prosecutors’ misconduct remain uncertain after less-than-definitive DOJ
investigations,” the panel concluded, and the trial was “permeated by the
cumulative effect” of the other irregularities identified by the district court. 31
Citing the “breadth of the government’s misconduct and continued
obfuscation” in the case, which “prevented the district court from evaluating
the fairness of the defendants’ trial,” the Bowen panel held Brecht’s footnote
nine applicable and affirmed the district court. 32 The panel also concluded, in
the alternative, that the defense adequately proved prejudice stemming from
the misconduct. 33
      Confronted with more limited misconduct with a more attenuated
connection to the trial, a panel of this court reached the opposite result in




      28 Id. at 351.
      29 Id. at 347-48.
      30 Id. at 339.
      31 Id. at 340.
      32 Id. at 353.
      33 Id. at 355-59.

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                                       No. 14-30940
United States v. McRae. 34 There, the district court denied Gregory McRae’s
motion for a new trial after the anonymous online commenting scandal broke. 35
McRae—a police officer who had been convicted of civil rights violations in the
wake of Hurricane Katrina—was the subject of a number of disparaging
anonymous comments by Perricone on nola.com. 36
       On appeal, the McRae panel affirmed the district court’s holding that a
presumption of prejudice was inappropriate in that case. 37                       The panel
concluded that McRae had failed to “prove a connection between the postings
in question and the conduct of the trial, such that we must question our
‘confidence in the jury verdict.’” 38 Noting that the comments were “a small
handful out of hundreds of anonymous, speculative postings” on a single
website and contained no “blatantly prejudicial information,” the panel saw
“nothing to suggest that any jury member saw any of [the online comments at
issue].” 39   While acknowledging that the Supreme Court has endorsed a
presumption of prejudice in certain “extreme case[s]” of pre-trial publicity, the
panel concluded it was plainly inapplicable in McRae’s case due to the factors
cited above. 40
       The McRae court went on to determine that despite Perricone’s
affiliation with the U.S. Attorney’s Office, there was no ground to presume
prejudice based on prosecutorial misconduct. We distinguished cases in which
prosecutors made “public, prejudicial statement[s] about the case that [were]
prominently covered by the local media.” 41 Given the “anonymous, relatively



       34 795 F.3d 471 (5th Cir. 2015).
       35 Id. at 481.
       36 Id. at 475-76.
       37 Id. at 481.
       38 Id. (quoting United States v. Poole, 735 F.3d 269, 279 (5th Cir. 2015)).
       39 Id. at 481, 482.
       40 Id. at 482 (quoting Skilling v. United States, 561 U.S. 358, 381 (2010)).
       41 Id. at 483.

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                                   No. 14-30940
low-profile” character of Perricone’s comments and his lack of affiliation with
the trial team, the panel held that the district court did not abuse its discretion
by refusing to order a new trial. 42
                                        III
      Pratt’s only contention on appeal is that the district court should have
applied a presumption of prejudice. As her counsel admitted in the briefs and
at oral argument, Pratt does not dispute the court’s findings that she was not
actually prejudiced by the misconduct. To determine whether the district court
abused its discretion by failing to presume prejudice, we first analyze Pratt’s
allegations concerning Perricone’s comments and then turn to her allegation
that prosecutors undertook a “cover up” and were responsible for various leaks
in a related case.
                                        A
      We begin with Perricone’s comments. Simply put, we conclude that the
prosecutorial misconduct in question is too far removed from the proceedings
to support a presumption of prejudice.
      A number of considerations support this conclusion. First, Perricone had
no responsibility for the Pratt trial, and no one from the trial team posted
comments about Pratt while the trial was underway. To be sure, Perricone
worked in the same U.S. Attorney’s Office as the prosecutors who tried Pratt’s
case, and Mann—First Assistant U.S. Attorney and Chief of the USAO’s
Criminal Division—posted two comments about Pratt’s trial after it had
concluded. 43 But in Bowen, by contrast, one of the commenters was the leader
of the “taint team,” had testified before the judge in a hearing related to the
case, and posted her comments while the case was still in the jury’s hands.



      42   Id.
      43   OPR Report at 42.
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                                      No. 14-30940
       Second, unlike the situation in Bowen, there is no allegation here that
the prosecution engaged in dilatory tactics or misrepresentations before the
district court.    The district court in Bowen concluded that, in the unique
circumstances of that case, a further inquiry was required to ascertain whether
the verdict had been tainted by misconduct. 44 The Bowen panel concluded that
the government’s conduct in that case inhibited that inquiry by preventing the
district court from “uncover[ing] the extent of the prosecution’s transgressions”
or “determin[ing] the severity of the prejudice” suffered by the defendants. 45
Here, by contrast, the district court concluded that the limited evidentiary
hearing he conducted was sufficient to dispel any doubt as to the integrity of
the verdict, and we have no reason to doubt that conclusion.
       Third, the numerous examples of prosecutors’ sharp practice catalogued
by the district court and credited by this court in Bowen have no parallel here.
In Bowen, the district court faulted the prosecution and FBI for intimidating
prospective witnesses, sponsoring a witness whose testimony was “inconsistent
and incredible”, and creating a “stark” disparity in sentences by offering
excessive leniency to officers who cooperated. 46 The prosecution in this case
has not been accused of similar conduct.
       Fourth, appellate review of district courts’ Rule 33 decisions are
“necessarily deferential to the trial court.” 47 We discern no error in the district
court’s findings that the jury was untainted by Perricone’s comments and that
nothing in the prosecutors’ conduct implicated the integrity of the verdict in
Pratt’s case.




       44 United States v. Bowen, 969 F. Supp. 2d 546, 553 (E.D. La. 2013), aff’d, 799 F.3d
336 (5th Cir. 2015).
       45 Bowen, 799 F.3d at 353.
       46 Id. at 347.
       47 Id. at 357 n.27 (quoting United States v. Wall, 389 F.3d 457, 465 (5th Cir. 2004)).

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                                       No. 14-30940
       Finally, we note that while prosecutorial misconduct is one route to a
presumption of prejudice, it is not the only one. In certain “extreme” cases,
pretrial publicity of any kind—not just pretrial publicity stoked by
prosecutors—can “manifestly taint[] a criminal prosecution” 48 and give rise to
a presumption of prejudice. 49 But this is not such an extraordinary case.
Instead, this case concerns a “handful” of “anonymous, speculative postings”
that were clearly disparaging but lacked the kind of “blatantly prejudicial
information”—such as a confession—that might poison public opinion and
entitle the defendant to a presumption of prejudice. 50
       Taken together, these considerations support the conclusion that
Perricone’s comments did not so “infect[] the integrity of the prosecution” that
a new trial is warranted. 51
                                              B
       Pratt also argues that other misconduct she attributes to the prosecution
gives rise to a presumption of prejudice. She points to the government “cover-
up” in response to the district court’s inquiry in Bowen, as well as two
unauthorized disclosures of nonpublic information related to the investigation
of Mose Jefferson, in support of her claim.
       Her argument is without merit. Pratt adduces no evidence that the leaks
were part of any campaign against her or the Jefferson family. What is more,
Pratt does not explain how the leaks and comments in other cases implicate
the integrity of the verdict in her case, except to say that “they were part of the
barrage of negative publicity against the Jeffersons that prejudiced Gill Pratt



       48 Skilling v. United States, 561 U.S. 358, 379 (2010); see also United States v. McRae,
795 F.3d 471, 481-82 (5th Cir. 2015).
       49 Skilling, 561 U.S. at 381.
       50 See McRae, 795 F.3d at 482 (quoting Skilling, 561 U.S. at 382).
       51 See United States v. Bowen, 799 F.3d 336, 351 (5th Cir. 2015) (quoting Brecht v.

Abrahamson, 507 U.S. 619, 638 n.9 (1993)).
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due to her long-time association with Mose.” Pratt provides no authority for
the proposition that conduct so remotely related to her case could warrant a
new trial. The district court did not abuse its discretion by denying her motion.
                                  *        *         *
      Because the prosecutorial misconduct at issue in this case does not give
rise to a presumption of prejudice, we AFFIRM the district court’s denial of
Pratt’s motion for a new trial.




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