## Facts

- After Hurricane Katrina, multiple New Orleans police officers responded to a report of shots fired at police at the Danziger Bridge.
- Officers shot and killed two unarmed civilians and wounded four others; a later cover-up was alleged.
- State prosecutions ended in a mistrial; federal authorities prosecuted five former officers (Bowen, Gisevius, Faulcon, Vallavaso, and Kaufman).
- A federal jury convicted the defendants of serious felony offenses and the court imposed lengthy prison sentences.
- After trial, it was discovered that several federal prosecutors anonymously posted case-related comments on a local newspaper website during pretrial and trial.
- The government’s internal inquiry into the postings was found by the district court to be delayed and incomplete, leaving uncertainty about the scope and effect of the misconduct.
- The district court also identified other irregularities, including false testimony by cooperating witnesses, overreach by an FBI agent, intimidation of defense witnesses, and large sentencing disparities connected to charging and plea practices.

## Issues

1. Whether the district court abused its discretion by granting a new trial under Federal Rule of Criminal Procedure 33 based on pervasive government misconduct without requiring a showing of specific, outcome-determinative prejudice.
2. Whether anonymous, case-related online commentary by prosecutors, combined with other irregularities and incomplete internal investigations, can justify a new trial because the fairness of the proceedings cannot be reliably evaluated.

## Decision

- The Fifth Circuit affirmed the order granting a new trial.
- The court held that, in an extraordinary case, Rule 33 does not require proof of specific prejudice where the breadth of government misconduct and uncertainty about its consequences make harmless-error review infeasible.
- The court concluded the district court acted within its broad discretion in finding it impossible to determine whether the defendants received a fair trial.
- The affirmance left the convictions vacated and the cases remanded for new trials.

## Legal Principles

- Federal Rule of Criminal Procedure 33 permits a district court to grant a new trial “if the interest of justice so requires,” and appellate review is for abuse of discretion.
- When prosecutorial misconduct is pervasive and its scope and consequences cannot be reliably determined, a district court may order a new trial without quantifying case-specific prejudice to the verdict.
- Prosecutorial public commentary about an ongoing case, particularly in a forum connected to the jury pool, can materially compromise the integrity and perceived fairness of a criminal trial.
- Courts may evaluate government misconduct cumulatively with other trial irregularities when determining whether the proceedings were fundamentally fair.

## Conclusion

The Fifth Circuit upheld the district court’s Rule 33 new-trial order because pervasive prosecutorial misconduct—especially anonymous online comments during the case—combined with other serious irregularities and an incomplete internal investigation, made it impossible to assess trial fairness through a conventional prejudice or harmless-error framework.


United States v. Bowen, 799 F.3d 336 (5th Cir. 2015)