ORDER AND REASONS

KURT D. ENGELHARDT, District Judge.

This matter is before the Court for sentencing.

At the conclusion of a jury trial, defendants Kenneth Bowen, Robert Gisevius, Robert Faulcon, Anthony Villavaso, and Arthur Kaufman were found guilty, on August 5, 2011, of multiple counts of a 25-count redacted indictment.1 Specifically, Kenneth Bowen was found guilty of Counts 1, 2, 3, 4, 5, 6, 7, 10, 11, 12, 13, 19, and 20; Robert Gisevius was found guilty of Counts 1, 2, 3, 4, 5, 6, 7, 11, 12, 13 and 21; Robert Faulcon was found guilty of Counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12 and 22; Anthony Villavaso was found guilty of Counts 1, 2, 3, 4, 5, 6, 7, 11, 12 and 23; and Arthur Kaufman was found guilty of Counts 11, 12, 13, 14, 15, 16, 17, 18, 24, and 25.

The (redacted) indictment charges as follows as to these defendants:2

Counts 1, 3, 4, 5, and 6 charge that defendants Bowen, Gisevius, Faulcon, and Villavaso, while acting under color of law, and aiding and abetting one another, willfully deprived James Brissette, Susan Bartholomew, Leonard Bartholomew, Lesha Bartholomew, and Jose Holmes, respectively, of the right, secured by the Constitution of the United States, to be free from the use of unreasonable force by a law enforcement officer, in violation of 18 U.S.C. § 242.

Counts 2 and 7 of the indictment charge defendants Bowen, Gisevius, Faulcon, and Villavaso with "using" and "Carrying" a firearm during and in relation to a crime of violence; and "possessing" a firearm in furtherance of a crime of violence; specifically, with Count 2, the civil rights offense charged in Count 1, and with Count 9, the civil rights offenses charged in Counts 3, 4, 5, and 6, all in violation of 18 U.S.C. § 924(c).

Count 8 as to defendant Faulcon, and Count 10 as to defendant Bowen, charge that the named defendant, while acting under color of law, willfully deprived Ronald Madison of the right, secured by the Constitution of the United States, to be free from the use of unreasonable force by a law enforcement officer, in violation of 18 U.S.C. § 242.

Count 9 of the indictment charges defendant Faulcon with "using" and "carrying" a firearm during and in relation to a crime of violence; and "possessing" a firearm in furtherance of a crime of violence; specifically the civil rights offense charged in Count 8, all in violation of 18 U.S.C. § 924(c).

Count 11 of the indictment charges that defendants Bowen, Gisevius, Faulcon, Villavaso, and Kaufman, along with others known to the grand jury, including Sergeant Gerard Dugue, Lieutenant Michael Lohman, and Detective Jeffrey Lehrmann, conspired to commit an offense against the laws of the United States, in violation of 18 U.S.C. § 371. The unlawful purpose of the conspiracy offense was to commit one or more of the three underlying offenses, which are: (1) to obstruct justice by falsifying evidence, in violation of 18 U.S.C. § 1519; (2) to obstruct justice by engaging in misleading conduct, in violation of 18 U.S.C. § 1512(b)(3); and (3) to make false statements in a matter within the jurisdiction of the Federal Bureau of Investigation (FBI), in violation of 18 U.S.C. § 1001.

Count 12 of the indictment charges that defendants Bowen, Gisevius, Faulcon, Villavaso, and Kaufman conspired with each other, and others known to the grand jury, to deprive Jose Holmes of the constitutional right to freedom from criminal prosecution based on false evidence, in violation of 18 U.S.C. § 241.

Count 13 of the indictment charges that defendants Bowen, Gisevius, and Kaufman conspired with each other, and others known to the grand jury, to deprive Lance Madison of the constitutional right to freedom from criminal prosecution based on false evidence, in violation of 18 U.S.C. § 241.

Counts 14, 15, 17, and 24 charge defendant Kaufman with obstruction of justice by falsifying evidence, in violation of 18 U.S.C. § 1519.

Counts 16, 18, and 25 charge defendant Kaufman with making false statements in a matter within the jurisdiction of the Federal Bureau of Investigation (FBI), in violation of 18 U.S.C. § 1001.

Counts 19 and 20 charge defendant Bowen with obstruction of justice by engaging in misleading conduct, in violation of 18 U.S.C. § 1512(b)(3).

Counts 21, 22, and 23 charge obstruction of justice by engaging in misleading conduct in violation of 18 U.S.C. § 1512(b)(3). Count 21 charges defendant Gisevius, Count 22 charges defendant Faulcon, and Count 23 charges defendant Villavaso.

After trial ended, the Court granted Motions for Judgments of Acquittal as to defendant Bowen with respect to Count 10; as to defendants Bowen, Gisevius, Faulcon and Villavaso with respect to Count 12; and as to defendants Bowen and Gisevius with respect to Count 13.3

18 U.S.C. § 3553(a) provides the legal basis for the Court to consider in imposing a sentence. This section instructs that the Court "shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider these factors:

Recent Supreme Court decisions following Booker4 and Fanfan5 instruct that district courts enjoy broad discretion now that the sentencing guidelines are merely advisory. See United States v. Gall, 552 U.S. 38 (2007); United States v. Duarte, 569 F.3d. 528 (5th Cir. 2009).6

I. COUNTS 2, 7 AND 9 (THE § 924(C) FIREARM COUNTS):

Two months after the verdict was rendered in this case, the United States Sentencing Commission filed its formal report to Congress entitled "Mandatory Minimum Penalties in the Federal Criminal Justice System" (the "Report"). This Report from the U.S. Sentencing Commission, filed in October 2011, spans over 340 pages, not counting the 89 pages of figures and statistical analysis attached in support of the Commission's findings. The Report discusses the impact of mandatory minimum penalties on federal sentencing, analyzing in detail sentencing data from across the country and encompassing scholarly literature in support of the information contained in the report. The Report also makes recommendations to Congress concerning modification or enactment of statutes relating to sentencing, penal and correctional matters that the Commission found to be necessary and advisable to carry out an effective, humane, and rational sentencing policy. The Report is now public record, and can be accessed on the United States Sentencing Commission's website at www.ussc.gov. Neither the government nor the defendants have referenced this document, but it is very important and provides great insight to these sentences. To attribute properly, the Report is quoted/copied verbatim at length (including most footnotes) over several passages hereinafter.

1. Mandatory Minimum Penalties for Firearms Offenses

With respect to firearms offenses, in 1984 Congress amended 18 U.S.C. § 924 to provide a mandatory penalty of five years of imprisonment for using or carrying a firearm during a "crime of violence," and elsewhere established mandatory sentencing enhancements for possessing dangerous ammunition during drug and violent crimes. Two years later, in 1986, Congress expanded the scope of section 924(c) to include carrying or using a firearm during a drug trafficking crime. Congress also substantially expanded the armed career criminal provision at section 924(e), and its mandatory minimum penalty of 15 years of imprisonment, to cover firearms possession offenses committed by those with three convictions for crimes broadly defined as "violent felonies" and "serious drug offenses."

In 1998, Congress again amended 18 U.S.C. § 924(c) in three ways, primarily in response to the Supreme Court's decision in Bailey v. United States, 516 U.S. 137 (1995), in which the Court interpreted the prior version of section 924(c) to require the defendant's "active employment" of a firearm in the predicate offense. First, prior law had established a mandatory minimum penalty of five years of imprisonment for an offender who "use[d] or carrie[d]" a firearm during and in relation to a crime of violence or drug trafficking crime. Congress amended the statute also to require a mandatory minimum penalty of five years of imprisonment if the offender "possesses a firearm" "in furtherance of any such crime." Second, Congress established more severe mandatory minimum penalties for certain offenders depending on whether, in violating section 924(c), a firearm was "brandished" or "discharged"— requiring mandatory minimum penalties of seven years and 10 years of imprisonment, respectively. Finally, Congress increased the mandatory minimum penalty for second or subsequent convictions under section 924(c) from 20 years to 25 years of imprisonment. Thus, in addition to responding to the decision in Bailey, Congress also amended section 924(c) to ensure that more serious offenses carried progressively higher mandatory minimum penalties.

It is interesting to note that in October 1993, Congress considered and enacted a statutory "safety valve" which would have permitted offenders facing mandatory minimum sentences for certain drug offenses to avoid the mandatory minimum sentences. As the law stands now, certain drug offenders facing mandatory minimum sentences and having only one criminal history point (it is noted that each of the defendants herein has only one point) are eligible to receive sentences below the statutory mandatory minimum regardless of whether the drug offense defendant had previously been incarcerated, i.e., they are eligible for the "safety valve" as codified in 18 U.S.C. § 3553(f). The defendants herein are not eligible for safety valve consideration, however, as their offenses are not drug-related. Thus, strangely enough (and as unjust as this warp in the law seems), the law installs mandatory minimum sentences for law enforcement officers7 under the circumstances of this case, but routinely allows for less than the so-called statutory "minimum" for certain drug offenses.

In Chapter 5 of the U.S. Sentencing Commission's Report to Congress, policy views about mandatory minimum penalties are also discussed. The very first policy — very important in this case — which supposedly supports the imposition of mandatory minimum penalties is "the promotion of uniformity in sentencing and avoidance of unwanted disparity", found on Page 85 of the Commission's Report to Congress. The Report states (footnotes omitted):

2. Excessive Severity and Disproportionality

Many view current federal mandatory minimum penalties as producing sentences that are excessively harsh relative to the gravity of the offense committed, in part because "all sentences for a mandatory minimum offense must be at the floor or above regardless of the circumstances of the crime."8 According to the Judicial Conference of the United States, mandatory minimum penalties end up sweeping broadly because

One scholar explains that many sentences seem disproportionate to the offense because "Congress did not link the minimum [sentence] to its picture of the least serious version of an offense," but rather to "an especially serious offender, and chooses as the `minimum' [a] sentence that it considers appropriate for him. As a result, Congress sets `minimum' sentences that are far too severe."10 Some critics, including the late Chief Justice William H. Rehnquist, cite Congress's political concerns as a reason why mandatory minimum statutes are excessively severe.11

Some scholars further argue that mandatory minimum penalties produce disproportionately high sentences even for offenders not subject to such penalties "because all [federal offenders] are subject to guidelines that have been set to incorporate the mandatory minimums."12 These observers believe increasingly severe mandatory minimum penalties have "impelled the [Commission] to increase many sentences to maintain some consistency in the Guidelines" and have caused higher sentences "virtually across the board."13

The Department of Justice itself has stated that "there are real and significant excesses in terms of the imprisonment meted out for some offenders under existing mandatory sentencing laws, especially for some non-violent offenders."14 The Department of Justice explained that "[m]andatory minimum sentencing statutes in the federal system now apply to a significant array of serious crimes; and they also, by and large, mandate very severe imprisonment terms."15 This, in turn, has produced exponential growth in the federal prison population since the 1980s, and the federal Bureau of Prison's overcapacity "has real and detrimental consequences for the safety of prisoners and guards, effective prisoner reentry, and ultimately, public safety."16 For this reason, the Department of Justice has suggested and continues to suggest "some reforms of existing mandatory minimum sentencing statutes are needed . . . to eliminate excess severity in current statutory sentencing laws and to help address the unsustainable growth in the federal prison population."17

The Report also advises Congress that statutory mandatory minimum sentences prevent courts from imposing individualized sentences. As outlined on Page 95 of the Sentencing Commission's Report, mandatory minimum penalties conflict with the goal of individualized sentencing.

3. Lack of Individualized Sentencing

For instance, the Judicial Conference of the United States has long urged Congress "to reconsider the wisdom" of mandatory minimum penalties because they "block judges from considering the individual circumstances of particular cases." Because mandatory minimum penalties may prevent a judge from considering all (or even most) of the pertinent facts and circumstances of the case (such as offender characteristics), the resulting sentence may be unfair or irrational. Likewise, the American Bar Association has also called for the repeal of federal mandatory minimum penalties after concluding that they are "inconsistent with the notion of individualized sentencing within a guided discretion regime." Moreover, there is significant agreement with the Judicial Conference and the ABA among judges, lawmakers, practitioners, scholars, and various advocacy groups . . . and even journalists: On April 3, 2012 (the day before the sentencing hearing), a New Orleans Times Picayune columnist wrote an opinion article entitled "Put Sentencing Back in Judges' Hands", in which he criticized mandatory statutory minimum criminal sentences. He quite correctly stated:

Perhaps of greatest concern, and as well-illustrated in this case on several fronts, the Sentencing Commission criticized statutory mandatory minimum sentences because they transfer sentencing discretion from judges to prosecutors. This transfer of discretion is of concern because it both constrains judges' discretion and "shift[s] that discretion to prosecutors, who do not have the incentive, training, or even the appropriate information to properly consider a defendant's mitigating circumstances at the initial charging stage of a case"18 — as illustrated infra.

According to a report of the Constitution Project Sentencing Initiative, co-chaired by former Attorney General Edwin Meese III and Professor Philip B. Heymann, this transfer of sentencing discretion through prosecutorial under-charging and plea bargaining effectively undercuts the objective of reducing disparity.19 Others have strongly concurred with this view: "Mandatory minimums effectively transfer sentencing authority from trial judges to federal prosecutors, who may pre-set punishment through creative investigative and charging practices, producing troubling punishment differentials among offenders with similar culpability."20 This shift in discretion is especially problematic, according to some, because prosecutorial decisions are made outside of public view and in an "uncertain and inconsistent" manner.21 U.S. Supreme Court Justice Anthony Kennedy has observed that even though a prosecutor may act in good faith, the "trial judge is the one actor in the system most experienced with exercising discretion in a transparent, open, and reasoned way."22 In the Commission's 2010 survey of federal judges, 66 percent of respondents ranked charging decisions among the top three factors contributing to sentencing disparities.

Moreover, and of even more gravity, the United States Sentencing Commission states that it is clear that mandatory minimum penalties can also be used to coerce defendants to plead guilty and waive constitutional rights: "Under this system, defendants who choose not to capitulate and go to trial are ultimately sentenced not only for their misconduct, but for declining to plead guilty on the prosecutor's terms."23 Finally, according to the U.S. Sentencing Commission, the threat of mandatory minimum penalties might cause offenders to give false information, to plead guilty to charges of which they may actually be innocent,24 or to forfeit a strong defense.25 See Nachmanoff, supra note 487, at 13 ("The problem with mandatory minimums is that they have a coercive effect.. . . This extraordinary pressure can result in false cooperation and guilty pleas by innocent people."); Ellen Yaroshefsky, Cooperation with Federal Prosecutors: Experiences of Truth Telling and Embellishment, 68 FORDHAM L. REV. 917, 931 (1999) ("[F]ormer [Assistant United States Attorneys] . . . readily admit that, in some instances, they simply could not determine if the cooperator had told the truth."); Prepared Statement of Thomas W. Hillier, II, Constitution Project, to the Commission, at 6-7 (May 27, 2010) (explaining that mandatory minimum penalties "create a powerful incentive for informants and cooperators to provide exaggerated or false information [to prosecutors] . . . [that] is not subjected to the crucible of trial").

Chapter 9 of the Sentencing Commission's Report to Congress is dedicated entirely to mandatory minimum penalties for firearm offenses, in particular 18 U.S.C. § 924(c), which is relevant in this case, and 18 U.S.C. § 924(e) which is not. On Page 359 of the Sentencing Commission's Report to Congress in October 2011, the Sentencing Commission was highly critical of what has become known as "stacking" mandatory minimum penalties under § 924(c). See Deal v. United States, 508 U.S. 129 (1993). Quoting from the Commission's Report:

According to the Sentencing Commission,

The Commission's Report explains further in a footnote:

U. S. District Judge Paul Cassell, who presided over the Angelos case, put together two interesting tables with regard to comparative sentences of other egregious crimes. In the first, he compared a single instance of a crime committed, and stated the comparative length of prison term under the guideline calculations: See Judge Cassell's Table I, attached. In the second table, he compared the calculated prison terms for each of those crimes had it been committed three times by the same individual: See Judge Cassell's Table II, attached.

The Tenth Circuit affirmed the sentences given, but explained:

United States v. Angelos, 433 F.3d 738, 751 (10th Cir. 2006). In concluding that the Angelos sentence was not disproportionate, the Tenth Circuit specifically cited "Congress' decision to severely punish criminals who repeatedly possess firearms in connection with drug trafficking crimes . . ." Interestingly enough, the Tenth Circuit's opinion does not reflect any appeal by the government of Judge Cassell's one day concurrent sentence on the thirteen (13) other counts, which would imply the government's satisfaction that the 55-year sentence — plus one day — was an acceptably long sentence. Continuing from the Sentencing Commission's Report:

As to the cooperating defendants in Danziger, this DOJ policy was not followed — they were not charged with the most serious offense supported by the facts of this case, but were forgiven for it; as to the defendants sentenced today, this DOJ policy was abused through "stacking", resulting in mandatory statutory sentences that exceed applicable Sentencing Guideline ranges.

Lastly, the U.S. Sentencing Commission recommended that Congress amend the length of § 924(c) penalties so that the enhanced mandatory minimum penalties for a second or subsequent offense apply only to prior convictions, and should consider amending the penalties for such offenses to lesser terms; that Congress should eliminate the stacking requirement and amend 18 U.S.C. § 924(c) to give the sentencing court discretion to impose sentences for multiple violations of § 924(c) concurrently with each other, and that Congress consider clarifying the statutory definitions of the underlying and predicate offenses that trigger mandatory penalties under § 924(c) and the Armed Career Criminal Act to reduce the risk of inconsistent application and litigation that those definitions have fostered.

Because the Court is statutorily required to impose mandatory sentences consecutive to and without regard to the other sentences imposed on the other counts, it will follow the Congressionally-mandated mechanical process of sentencing as to Counts 2, 7 and 9 (Firearm Counts): The Court is duty-bound to sentence four of these defendants to statutory minimums, and will do so. The Court recognizes the potential Constitutional infirmity of these sentences on any number of grounds, including but not limited to due process, equal protection, double jeopardy, and under the Eighth Amendment; however, the Court likewise recognizes the Fifth Circuit's opinion in United States v. Ramos, 537 F.3d 439 (5th Cir. 2008), cert. denied, 129 S.Ct. 1615 (2009). In so doing, the Court again notes with alarm that others committed the same acts and will not be held fully responsible for them. In a case full of things that shock the conscience, this is yet another. Therefore, sentences on these counts are non-discretionary and are statutorily mandated by Congress: For Count 2, defendants Kenneth Bowen, Robert Gisevius, Robert Faulcon and Anthony Villavaso are each sentenced to 10 years in prison, served consecutive to any other sentence imposed; for Count 7, defendants Kenneth Bowen, Robert Gisevius, Robert Faulcon and Anthony Villavaso are each sentenced to 25 years in prison, consecutive to the sentence for Count 2 and any other sentence imposed; and as to Count 9, defendant Robert Faulcon is sentenced to yet another 25 years in prison, consecutive to the first two sentences of 10 years and 25 years, and consecutive to any other term of imprisonment imposed. These sentences serve none of the salutary purposes of § 3553(a); the Court imposes them purely as a matter of statutory mandate.

II. THE REMAINING COUNTS:

Putting aside the § 924(c) firearm counts, and without regard to them, the Court now turns to the issue of sentencing on the other counts, wherein the Court is afforded some discretion after consulting the advisory guideline ranges. United States v. Gall, 552 S.Ct. 38 (2007); United States v. Brantley, 537 F.3d 347 (5th Cir. 2008); and United States v. Duarte, 569 F.3d 528 (5th Cir. 2009). The Court is also well cognizant of the following opinions cited by the government, none of which are Fifth Circuit controlling opinions, but have been read by the Court for their persuasive authority: United States v. Worman, 622 F.3d 969 (8th Cir. 2010); United States v. Williams, 599 F.3d 831 (8th Cir. 2010); United States v. Roberson, 474 F.3d. 432 (7th Cir. 2007); and United States v. Chavez, 549 F.3d 119 (2d Cir. 2008). None of the parties including the government have cited to a Fifth Circuit opinion that follows Worman, Williams, Roberson and Chavez, nor has the Court found any opinion wherein the Fifth Circuit has adopted the positions set forth by the Second, Seventh and Eighth Circuits in those opinions.

Against this background, the Court returns to the factors set forth in Section 3553(a), which the Court must consider and apply in imposing a sentence: (1) the nature and circumstances of the offense and the history and characteristics of the particular defendant; (2) the need for the sentence imposed, including the provision of just punishment, adequate deterrence, and protection of the public; (3) kinds of sentences available; (4) the sentencing range set forth in the guidelines; (5) consideration of any pertinent policy statements issued by the Sentencing Commission, of which I have already spent an exhaustive amount of time discussing; (6) perhaps the most critical factor here, the need to avoid unwarranted sentence disparities among defendants with similar records who are guilty of similar conduct; and (7) the need to provide restitute.

(1) the nature and circumstances of the offense and the history and characteristics of the defendant

a. the offense:

The Court has already commented on how serious and egregious these crimes are, and how they impact not only the victims in a tragic fashion involving great bodily harm, and death, but also how deep a wound these offenses inflict on our citizenry.

b. history and characteristics of the defendants:

1. Kenneth Bowen:

Defendant Kenneth Bowen is a native New Orleanian and lifelong resident of Orleans Parish. Bowen graduated from O. Perry Walker High School and served in the United States Marine Corps Reserves. He joined the New Orleans Police Department in 1997, working full time while completing college at Loyola and also attending law school at Loyola where he was eligible for law review. In 2003, he was promoted to sergeant in the NOPD and in 2004, he graduated from Loyola Law School. During his years in the NOPD, Bowen, or the units in which he worked, received several commendations. From 2008 to 2010, Bowen was assigned to the Criminal Intelligence Bureau, where he performed high level security work with the United States Department of Homeland Security, without incident. He has one son, age 5. He stands before the Court today having been convicted of Counts 1, 3-6, 11, and 19-20.35

2. Robert Gisevius:

Defendant Robert Gisevius, Jr. is a native of New Orleans, who grew up in the Gentilly area. He attended Pope John Paul II High School in Slidell, was enlisted in the Louisiana Army National Guard Reserves from 1993 to 1996 before receiving an honorable release from active duty. In 1997, defendant Gisevius graduated from the New Orleans Police Academy and has served in NOPD until his arrest in July 2010. During that time, he was promoted to sergeant in 2004. Mr. Gisevius has two sons, ages 12 and 6. He stands before the Court today having been convicted of Counts 1, 3-6, 11, and 21.36

3. Robert Faulcon:

Defendant Robert Faulcon, Jr. is a native of Brooklyn, New York. He was raised by his parents, both of whom were here for the duration of the trial. His father is a minister. Upon graduation from high school in North Carolina, defendant Faulcon enlisted in the United States Army, and then successfully completed airborne training, and was honorably discharged in January 1986. In November 1986, defendant Faulcon enlisted in the United States Navy, and received his honorable discharge from that branch of the service in April 1991. He served in the United States Navy Reserve as well. In 1997, he completed training at the New Orleans Police Academy in order to take a position with the Orleans Parish Criminal Sheriff's Office, and successfully obtained his POST certification. From December 2001 until October 31, 2005, defendant Faulcon was employed as a police officer with the NOPD, a position from which he resigned on October 31, 2005 in order to take a job in Houston, Texas to be with his family. Defendant Faulcon has one son, born in the week or two after Katrina while Mr. Faulcon was on duty in New Orleans. In a real sense, Robert Faulcon's six year old son, Rashad, is now yet another victim of Hurricane Katrina and what has come to be known as "Danziger", as he will never see his father outside of the walls of a prison under this sentencing scheme. Robert Faulcon stands before the Court today having been convicted of Counts 1, 3-6, 8, 11 and 22.37

4. Anthony Villavaso:

Although a description of defendant Anthony Villavaso is in order, the best description of this man is contained in the letter written by his father, Anthony M. Villavaso, between the August 5th date of the conviction and the October date of the elder Mr. Villavaso's passing:

With regard to his career at the New Orleans Police Department, defendant Villavaso joined the NOPD in 2001, when he enrolled in and completed the New Orleans Police Academy, having obtained his POST certification. The Court has no evidence that Mr. Villavaso's tenure at NOPD was controversial, inadequate, or negative in any way; rather the record indicates that he has, but for the crimes here, discharged his responsibilities in appropriate fashion. He stands before the Court today having been convicted of Counts 1, 3-6, 11 and 23.38

5. Arthur "Archie" Kaufman:

Defendant Arthur Robert Kaufman was born in Queens, New York, and has lived in Louisiana since 1978. He was enlisted in the United States Army between 1982 and 1983, and received an honorable release from active duty, whereupon he served in the National Guard and Coast Guard Reserves. From March 1990 until June 2011, defendant Kaufman was employed by the NOPD, having been promoted to sergeant in 2004. During that time, according to Special Agent-in-Charge Kelly Bryson (who testified at trial), Kaufman worked with many agents of the FBI handling violent crime matters. He was considered friendly and cooperative with the FBI agents — Agent Bryson described him as having "a very positive relationship with agents in our office." Bryson Testimony, pp. 16, 51, and 84. The Court has been provided with no evidence or other information indicating that Sergeant Kaufman's conduct, other than the instant offenses, was improper or inadequate in the discharge of his responsibilities as an NOPD officer. He has one adult daughter. He stands before the Court today having been convicted of Counts 11-18, 24 and 25.

(2) the need for the sentence imposed:

Without a doubt, the remaining counts (not involving firearms) are serious crimes, and terms of imprisonment are warranted. The sentences that the Court imposes on these counts are based upon all relevant factors including but not limited to the backgrounds and personal histories of these defendants, which I have just outlined, as well as the need for punishment. Defendant Kaufman does not face statutory minimums, however, the sentence he receives today factors in what would be considered adequate punishment relative to the seriousness of his crimes, and how those crimes are viewed by the government when committed by others, as set forth hereafter.

(3) the kinds of sentences available:

Again, the Court is, unfortunately, rather limited in terms of what sentences are available. It was the Court's hope that sentences that adequately punish these defendants through considerable incarceration, and then serve to force them to make good on their wrongdoing, could be fashioned. These four men are able-bodied and in no way handicapped; and, in terms of violating civil rights and breaching the public trust by committing crimes of obstruction, they will not have the opportunity to commit those crimes again, as they will never serve in public law enforcement again, even were they not incarcerated. Thus, rather than having them live at taxpayers' expense in a federal prison for the remainder of their lives, it strikes me as much more preferable to sentence them to lengthy but realistic prison terms, and then thereafter to put them in a position to rectify their wrongs through some type of restitute, extensive community service, or other such beneficial conduct of which they are capable. The Court is not afforded such latitude because of the sentences already given based on statutory minimum assigned to these crimes, and thus those options are foreclosed.

(4) the kinds of sentence and the sentencing range based on category of offense committed and criminal history category under the Sentencing Commission's guidelines:

All five of the defendants are criminal history Category 1 under the guideline calculation as calculated pursuant to the United States Sentencing Commission Guidelines. None has a criminal history; indeed, all have received commendation for their work as police officers prior to September 4, 2005.

(5) any pertinent policy statement:

As to any pertinent policy statement, the Sentencing Commission's policy can be discerned very clearly, without any equivocation whatsoever, in its October 2011 Report to Congress entitled "Mandatory Minimum Penalties in the Federal Criminal Justice System", from which this Court has already quoted extensively. The Court cited the Commission's Report as that pertinent policy statement of the United States Sentencing Commission not only for consideration under Part 5 of Section 3553(a), but also because lengthy mandatory minimums required to be served consecutively do necessarily impact all other sentences. Commission policies are not served by the mandatory minimum sentences imposed, and the consecutive sentences to be imposed in these remaining counts.

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct:

As to this factor, the Court will discuss it hereinafter.

(7) the need to provide restitute to any victims of the offense:

Though the Court recognizes that, pursuant to 18 U.S.C. § 3663(a), restitution shall be ordered, this is not without complication. First of all, the Court has received nothing, not a single piece of paper or other information or documentation supporting a quantification of restitution for any victim. This sentencing has been continued twice on the docket of this Court; the actual event of the shooting took place over six and a half years ago; counsel was retained and civil lawsuits were filed a few years ago; the defendants were indicted over twenty-one months ago; and a verdict was rendered in this case eight months ago. It is truly difficult to imagine why restitution has not been quantified and submitted to the Court by the victims (or their counsel) in connection with this sentencing, although § 3664(a) requires the submission, to the extent practicable, of "a complete accounting of the losses to each victim, any restitution owed pursuant to a plea agreement, and information relating to the economic circumstances of each defendant."39 If the number or identity of victims cannot be reasonably ascertained, or other circumstances exist that make this requirement clearly impractical, the probation officer shall so inform the court." In this case, however, the number and identity of the victims has long been well known throughout the community, and a complete accounting of the losses to each victim has certainly been fully investigated by their counsel and by the government over the past five years, and surely over the past eight months since the guilty verdicts were rendered in this case.

And there are other complications. For instance, many others participated in, and aided and abetted, the perpetration of these crimes. It is impossible to attribute or apportion restitution among these actors — both those who entered guilty pleas and those who have never been charged, but nonetheless aided and abetted — with any certainty. The testimony of the cooperating defendants all reflected their perpetration of each of the crimes for which a guilty verdict was rendered herein. None of the other criminal defendants who admitted, from the witness stand, that they committed these crimes have been ordered to pay restitution as part of their sentencings. Those defendants who were not part of this trial received substantial benefits of severely-reduced sentences. It makes no sense to order these defendants today to pay entire restitution, when others who every bit participated with, and aided and abetted, them have been forgiven such obligation.

Moreover, given the very long prison terms which the Court is required to impose on four of these defendants, as well as defendant Kaufman's age, any restitution would likely be impossible to pay. Were these defendants to serve long prison terms but still come out to rejoin the work force in some capacity, restitution would not be impossible; with these prison terms, restitution is practically meaningless.

Furthermore, as described at trial, the victims of these crimes have filed civil actions to recover damages. Their able counsel sat through significant portions of the trial, and they have the benefit of these proceedings to assist in their recovery in the civil lawsuits they have filed. Most importantly, several of the victims have stated publicly, both here in court and in various media outlets, that their only concern and pursuit with regard to the events of September 4, 2005, was to bring the perpetrators to justice. When asked at trial about retaining counsel, they downplayed their interest in financial compensation, and the jury accepted that testimony as given under oath. The Court does likewise.

The Court recognizes the provisions of 18 U.S.C. § 3664(d)(5) which allows the Court to grant additional time, but only "if the victim's losses are not ascertainable by the date that is ten days prior to sentencing." No such showing has been made, or even attempted. Therefore, the Court is unable to award restitution in this case.

The Court returns to the factors under Section 3553(a)(2). The first of those is: (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense:

There can be no underestimating the seriousness of the offenses here: two lives were lost, serious bodily injury was inflicted, and as previously discussed, official Police Department records, upon which the public has the right to rely, were corruptly impaired. Punishment is in order, and the law prohibiting such conduct must be respected by the imposition of sentences on these five defendants. The Court believes that the sentences imposed today (on these counts) provides just punishment for these offenses, considering the entirety of the sentences.

(B) Next, whether the sentence affords adequate deterrence to future criminal conduct:

The sentences issued today much more than serve the purpose of affording adequate deterrence to future criminal conduct with regard to these defendants. These defendants were convicted of violating civil rights under color of law, and obstructing justice. Suffice it to say none of these defendants will ever be operating under color of law, or hold a position of public trust. Thus, they will not be in a position to commit such crimes in the future. There is no doubt that police officers will serve jail terms if involved in such activity.

(C) Thirdly, whether the sentence protects the public from further crimes of each defendant:

The public is protected as these defendants will not be in a position to violate the civil rights of any other citizens under color of law. Likewise, these defendants will not be in a position to falsify documents or make false statements to be put in official New Orleans Police Department documents in the future. Given their long jail terms, suffice it to say the public is protected from any possible further crimes each of the defendants Bowen, Gisevius, Villavaso or Faulcon could possibly imagine. Likewise, Kaufman's jail term, along with his term of supervised release, protects the public from any further crimes of the sort he has committed herein.

(D) Lastly, under this subsection, the Court is required to consider whether the need for this sentence includes providing the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner:

With regard to this factor, the Court has considered that certain of the defendants need medical care, and will make recommendations to the Bureau of Prisons accordingly.

The Court now returns to the considerations which the law requires this Court to give under Section 3553(a)(6): the need to avoid unwarranted sentence disparities among defendants. This is, without a doubt, the most troubling and rather unsettling aspect of these sentences. All defendants and wrongdoers involved in what has come to be known simply as "Danziger" must be considered. The Court elaborates hereafter based upon the factual circumstances all as testified to by the very people who have taken the witness stand at this trial and told what they did. When one considers the criminal conduct in this case — that committed by the defendants to be sentenced today along with those with whom they worked side-by-side, hand-in-glove, step-by-step — one can only be astonished and deeply troubled by the terms of the plea bargains allowed in the Danziger bridge matter.

1. Jeffrey Lehrmann

Jeffrey Lehrmann was among the first couple of involved defendants to enter a guilty plea regarding this matter. Mr. Lehrmann's involvement encompassed all of the same conduct as Mr. Kaufman with regard to the cover-up. In fact, Lehrmann worked along side Mr. Kaufman, step-by-step, with regard to the so-called "planted gun"; and Lehrmann is even attributed as the one who thought up the name of "Lekeisha" for the fabricated witness; he admits as much. His conduct is just as reprehensible as that which the jury found defendant Kaufman to have committed. Unlike Kaufman, he then appeared before the federal grand jury and admitted he then lied, yet another serious federal crime.

Yet the government offered Lehrmann the opportunity to plead guilty simply to misprision of a felony, which carries a maximum sentence of only three years. It remains astonishing that a man who admittedly participated in the framing of two innocent people is not only allowed to limit his prison exposure to three years, but was also allowed by the government to keep his (subsequent) job as an Immigration and Customs Enforcement Agent after having admitted to such deeds. Although the government maintains (and the undersigned agrees) that, as one of the first to come forward, Mr. Lehrmann should get the best deal in helping to unravel this case, surely the government was well aware that such a generous deal would create significant problems when considering sentencing disparity of others who committed the very same or similar serious crimes. In other words, while a distinction can be made for acceptance of responsibility, the disparity cannot be so great as to overstate the value of Lehrmann's plea, particularly when others also came forward. By allowing him to limit his prison exposure to only three years, the government has merely allowed him to evade true responsibility. If he were truly "accepting responsibility", he would have come to this Court like a contrite man and plead guilty to at least some of the actual crimes he committed, not the minimal "slap on the wrist" misprision charge he negotiated to escape paying the price.

At trial, Lehrmann testified, as he was required to do under his plea agreement. His testimony, however, featured several smirks and laughs, along with some outright fabrications, including where he parked his vehicle upon arrival at the scene, testimony which was easily disproven through use of the videotape exhibit. Yet the government's evaluation of Lehrmann's status, despite his commission of all of the acts Kaufman committed, is that an even lower 18 month sentence would be appropriate. In the government's Rule 35 motion, Rec. Doc. #57 in Mr. Lehrmann's criminal case, the government praised Lehrmann's cooperation, and also took into account "the severity of Mr. Lehrmann's offense" to ask U. S. District Judge Lance M. Africk to reduce Mr. Lehrmann's already incredibly low maximum statutory sentence of 36 months to a mere 18 months,40 all the while acknowledging that "Mr. Lehrmann had participated in serious crimes involving a massive betrayal of public trust" — in fact the same crimes Mr. Kaufman was found guilty of perpetrating. The government's acceptance of Lehrmann's exposure to a misprision plea of three years maximum sets the bar very low for other such similar conduct in this case, and the government's willingness to allow Mr. Lehrmann to serve only 18 months of that in prison is telling, and unfortunate. Moreover, he was not ordered to pay restitution for these crimes he admitted he committed.

Is there any real doubt that Mr. Lehrmann's crimes and conduct are more than simply knowing of a felony and failing to report it? It seems that to say so requires one to go through the looking glass or down the rabbit hole.

2. Kenneth Bryan

The government also called as a witness at trial Officer Kenneth Bryan, who rode in the back of the Budget rental truck from the Crystal Palace to the Danziger Bridge on September 4, 2005. Mr. Bryan testified that he heard gunshots prior to the truck stopping and other officers exiting the rear of the truck. Bryan testified that he was scared and remained on the floor of the truck until the shooting stopped. He witnessed Officer Ignatius Hills fire his weapon twice at a fleeing 14-year old, but said nothing about that to his ranking officers nor to any other authorities. To make matters worse, when the shooting stopped, Kenneth Bryan then exited the truck after the 14-year old had been apprehended and handcuffed, whereupon Mr. Bryan quite courageously (pardon the sarcasm) approached the cuffed 14-year old and punched him in the face. Amazingly, the government has brought no charges against Officer Bryan for violating Leonard Bartholomew III's civil rights, but has offered his testimony before the jury at trial as truthful. Again, the prosecutorial discretion in the treatment of Mr. Bryan's conduct confounds this Court.

3. Ignatius Hills

Officer Ignatius Hills also rode in the back of the Budget rental truck from the Crystal Palace to the Danziger Bridge. Unlike other officers present, he did not exit the truck, fearing the gunfire he might face. Instead, Officer Hills remained in the back of the truck until the gunfire ceased,41 whereupon he saw 14-year old Leonard Bartholomew III running down the bridge, his back to the rear of the truck. Ignatius Hills took that opportunity to fire his side arm twice at the fleeing teenager, while Officer Hills remained in the safety of the rear of the truck. But for the grace of God, along with the fact that Ignatius Hills is apparently a lousy marksman, Leonard Bartholomew III survived and was physically uninjured, except for the aforementioned punch to the face while cuffed, administered by Kenneth Bryan. Ignatius Hills sought out the government to enter a plea, and was afforded by the government the opportunity to plead guilty to conspiring to obstruct justice (18 U.S.C. § 371) in the investigation of the Danziger Bridge shooting and failing to report a felony crime, which when combined allow for a maximum of eight years in jail. When compared to the minimum sentences to be levied against these defendants today, it is difficult to imagine how Officer Hills should benefit so greatly solely as a result of his cowardice in failing to exit the truck, and his poor marksmanship in failing to hit the target he so wished to strike. But eight years was the statutory cap, and he received a 6½ year sentence despite the fact that the government sought an even lesser sentence of a paltry four years, praising Mr. Hills as someone who "accepted responsibility for his actions and fully cooperated with the government's investigation", finding his testimony to be "honest and straightforward." The government believed that a sentence of only four years, without payment of any restitution to any victim, would balance the severity of Mr. Hills' offenses of firing his gun at an innocent unarmed fleeing 14-year old and participating in a conspiracy to cover up such grave actions versus the value of his cooperation. So instead of aiding and abetting these four defendants found guilty for violating civil rights by firing weapons on the bridge, all of whom face a minimum consecutive sentence of at least 35 years, the government would have Hills serve only four years in prison. U. S. District Judge Martin L.C. Feldman wisely rejected the government's suggestion, but still Mr. Hills received only six and a half years42 for his aiding and abetting Bowen, Gisevius, Villavaso and Faulcon, and participating with them in the conspiracy to cover it up, all of which he admitted from the witness stand.

4. Michael Hunter

Michael Hunter drove the Budget rental truck to the Danziger Bridge on September 4, 2005. He testified at trial: Mr. Hunter's cavalier approach to his NOPD job was that it allowed him to consider a disciplinary suspension without pay to be like a vacation (Hunter testimony, p. 5, lines 10-14). With that kind of attitude, Mr. Hunter approached the bridge and, without announcing to any of his fellow officers his intention to do so, violated one of the most basic and fundamental principles of law enforcement firearm use: he said he fired "warning" shots out of the window of the truck as it moved into position on the Danziger Bridge. Indeed, it would be fair to say that, along with Officer Jennifer Dupree's urgent call and description of the "108 — officers down", Hunter's warning shots were the spark in the tinder box without which this event would probably never have happened.43 Mr. Hunter also exited the Budget rental truck first and began firing his side arm, the small caliber Glock, in the direction up the bridge likely striking Ronald Madison first as Madison fled with his brother down the west side of the bridge, causing him to clutch his upper left torso.44

On April 7, 2010, the government allowed Mr. Hunter to plead guilty to a violation of 18 U.S.C. § 371 (conspiracy to obstruct justice) and a violation of 18 U.S.C. § 4 (misprision of a felony), exposing him to a maximum sentence of only eight years, all of which he received from Judge Vance on December 1, 2010. Hunter testified at this trial, though his testimony too was laced with obvious untruths, convenient memory lapses, and parlous fabrications useful to the prosecution. At the time he was sentenced, U. S. District Judge Sarah S. Vance stated: "It is hard to imagine a more profound breach of public trust than what happened here." She further described Hunter's actions as "a moral outrage" and "appalling perversion" and "savagery." Nonetheless, the government thereafter filed a Rule 35 motion seeking to reduce his already severely minimized criminal exposure. In its Rule 35 motion, which is Rec. Doc. 45 in the record of his prosecution (USDC-EDLA No. 10cr86), the government lauded Hunter's cooperation and honesty, about which this Court has already commented in Rec. Doc. 593, and sought to reduce his sentence from 8 years to 5 years. Despite the urging of the government, Judge Vance wisely refused to reduce Mr. Hunter's sentence, stating:

Hunter committed the same acts of aiding and abetting that were committed by Bowen, Gisevius, Villavaso and Faulcon in this case, who face statutory minimum sentences. His flagitious conduct is breath-taking; the government's decision not to charge him accordingly and to simply allow him to evade true responsibility, while pursuing decades of incarceration against others involved to the same or lesser extent, remains unsettling, to say the least.

5. Michael Lohman

Mike Lohman's trial testimony may have been the most convincing amongst those who pled. He was a well-respected lieutenant in the New Orleans Police Department, and had worked his way up the ranks by compiling an almost spotless record. His role in this tragedy, and the crimes to which he has plead guilty, are thus particularly troubling to the Court. Mr. Lohman was the highest ranking officer involved, and was the single most powerful person to have prevented these crimes, and to have reported them accordingly. Instead, he was the leader of the conspiracy. Mr. Lohman's responsibilities were great, and he failed his department, his profession, his colleagues, his community, and his family and friends. Most importantly, he failed himself in tragic fashion.

Mr. Lohman supervised defendant Archie Kaufman, who was a sergeant underneath Mr. Lohman. It was Lohman who ordered Kaufman to handle the Danziger shooting investigation, after "Central Homicide" could not do so, as was the usual pre-Katrina practice.45 Mr. Lohman not only was aware of each and every one of the criminal acts Mr. Kaufman committed, he approved of them, and further enhanced and aggravated them by writing his own 17-page fictional account of an event at which he was not even personally present. As far as "cover ups" go, Lohman was the ringleader, the consigliere, the chief executive officer when it comes to engineering the incident we now refer to as "Danziger." The buck started and stopped with him. All he had to say was "no", or "stop." He did not. Moreover, he was not the first person to plead guilty, but waited for another lower level employee, Mr. Lehrmann, to do so.

Although the government seeks a sentence of 20 years for Mr. Kaufman, it cut a deal with Mr. Lohman to limit his prison exposure, at a maximum, to five years. The government allowed Mr. Lohman to plead guilty to a violation of 18 U.S.C. § 371 (conspiracy to obstruct justice), despite the fact that he could have been charged with virtually everything Mr. Kaufman had been charged with; and despite the fact that Lohman's authoritative role in the cover-up exceeded that of Kaufman, Lehrmann, and others.

Lohman was not sentenced to the maximum of five years, despite the gravity and breadth of his criminal transgressions, but was sentenced to 48 months, or four years. In receiving this reduced sentence, Lohman was aided by the government, who admitted that the offense Lohman committed carried a sentence that warrants, under the Sentencing Guidelines, a sentence that exceeds the five year statutory maximum to which the Court was limited. The government also found that Lohman, while supervising the cover-up as the ranking lieutenant, sought to exculpate involved police officers by claiming that two of the surviving civilians had instigated the shooting. See Rec. Doc. 56 in United States v. Lohman, USDC-EDLA No. 10cr32, specifically Page 3. Although the government describes the gravity of the offense to which he plead guilty, the government does not point out in the pleading it filed on his behalf that he committed, or aided and abetted in the commission, of each and every one of the crimes for which defendant Kaufman was convicted: to be specific, Lohman plead guilty to what was described in Count 11 in this trial, and he and the government admit that he committed Counts 12 and 13, regarding the prosecution of Jose Holmes and Lance Madison, was fully apprised of and participated in the falsification of evidence in Count 14, the obstruction of justice concerning the firearm in Count 15; he admitted at trial that he made false statements to the FBI, as described in Count 16; he testified that he knew about and participated in the falsification of victim statements in Count 17; and made false statements to the FBI regarding victim statements in Count 18; and he knew about and participated in the fabrication of witnesses, and making false statements about them in support of such fabrication to the FBI, in Counts 24 and 25. He, too, was forgiven any restitution payable to the victims of his crimes, particularly Jose Holmes, whom he falsely accused, and Lance Madison, who sat in jail for several weeks after being falsely accused.

Nonetheless, the government argues now that Kaufman should be sent to jail for twenty (20) years. And although the government agreed to cap Lt. Lohman's exposure to prison to 5 years, it further argued that he should spend only 2 years46 actually in prison though he was of superior rank and was clearly the leader of the conspiracy. Thus the government would have Sgt. Kaufman serve ten (10) times the jail time of his commanding officer and leader of the conspiracy, even though Kaufman was not involved until Lt. Lohman ordered him to begin the "investigation." While the Court recognizes and supports rewarding defendants who accept responsibility, enter guilty pleas, and cooperate with the prosecution by assisting in the prosecution of other wrongdoers, this amounts to a 90 per cent decrease from the 20 years the government would have Kaufman serve. It is quite frankly shocking that the government so grossly discounted such serious and grave criminal conduct by rewarding so generously the one person in command who could have stopped it at its inception. Of course, this plays no small role in the Court's consideration of Mr. Kaufman's sentence. The government's view of these criminal acts is heard loud and clear in how the government treated others, like Lohman and Lehrmann, who engaged in the very same criminal conduct. Though Kaufman does not get the benefit of having entered a plea and accepting responsibility, he also will not be sentenced to a term so extraordinary for committing the same acts as Lohman and Lehrmann. The disparity under § 3553(a)(6) would simply be too great. His sentence will reflect, by law, that afforded defendant Lohman and defendant Lehrmann.

6. Robert Barrios

Perhaps the biggest winner in the plea bargain sweepstakes is Robert Barrios. Robert Barrios is one of the so-called "Danziger Seven", the name given to the group of officers who purportedly exited the truck and fired their weapons on the bridge on September 4, 2005. He admitted he had done so, and enthusiastically included himself in the original group who responded to the question of "who discharged a weapon?", shortly after the occurrence on the very day of the shooting. On that day, Barrios was one of only two people armed with a shotgun, defendant Robert Faulcon being the other. Later, after Barrios determined that he and the other shooters might well be in some trouble as a result of the erroneous shootings, Barrios conferred with Mr. Glenn Madison, a ballistics officer with the NOPD, to answer a simple question: Could the ammunition from a shotgun blast be traced to a particular shotgun? Officer Madison, who testified at trial, indicated that it could not, which opened the door for Barrios to then change his story so as to absolve himself of responsibility for any of the shootings: he simply denied he fired his weapon at all, thus allowing the government at trial to attribute any shotgun discharge to defendant Robert Faulcon.

On April 28, 2010, the government allowed Barrios to enter a guilty plea to conspiring to obstruct justice, 18 U.S.C. § 371, exposing him to a maximum five year sentence. And while the government secured Mr. Barrios' cooperation, it, curiously enough, declined to call him as a witness at trial in its case-in-chief.

At trial, Barrios was called as a witness by the defendants. His shy low-key demeanor on the stand was belied by his loud, aggressive, argumentative tone on a tape recording he made, at the behest of the government, with his former partner, defendant Anthony Villavaso. Despite Barrios' fanatical urgings, defendant Villavaso refused to say that he saw no guns on the Danziger Bridge, but remained steadfast in what he perceived that morning.

At trial, FBI Special Agent William Bezak described Barrios' testimony and cooperation as "odd", meaning that he somehow found it strange that Barrios would have originally admitted to firing his weapon, as opposed to denying it. The undersigned does not find Barrios' conduct and testimony "odd" at all. In fact, Barrios' conduct is entirely consistent with one who simply lies to get out of trouble. What is "odd" is that he was allowed to do so.

It is appropriate now to discuss James Brissette, whose life was tragically ended on September 4, 2005. Although in its verdict on Count 1, the jury found that James Brissette did, of course, die as a result of the violation of his civil rights, his civil rights were violated exclusively through the use of firearms as the instrumentality — in other words, he was not beaten, punched, or stabbed; only guns were used, and then by several individuals, including four of the defendants here but also Mr. Barrios, Mr. Hunter and others. However, the jury found as a matter of fact that specifically none of these four defendants, by name on an individualized basis, caused the death of James Brissette, as clearly indicated by the jury in its verdict answers to Questions 2(a)-2(d). Notwithstanding the government's evidence, including expert ballistics testimony (which the jury apparently found unconvincing) and lack of shotgun shells (though many weeks had passed before they were sought), the jury found as a matter of fact,47 beyond a reasonable doubt, that each man — Bowen, Gisevius, Faulcon, and Villavaso — did not cause the death of James Brissette. The Court further cites to the evidence at trial, and further quotes from the stipulation reached in the subsequent Dugue trial regarding Dr. Dimaio's testimony: "James Brissette was also struck in the back of the head by three shotgun pellets, two of which lodged in his brain and caused his death. James also had shotgun pellets in his buttocks and his hip, which likely came from this same shotgun blast from behind." It is well established that only two men had shotguns on the bridge: Robert Barrios and Robert Faulcon. Because the testifying pathologist and coroner indicated that the kill shot on James Brissette came from a shotgun, and excluding Robert Faulcon as the jury unequivocally did, the only remaining possibility is that the fatal shots came from Robert Barrios' shotgun, if we are to accept the jury's verdict on this count, which the Court has done. This fact finding is supported by the factual evidence,48 primarily Mr. Barrios' initial spontaneous and express admission that he did shoot James Brissette, who (according to Barrios) spun around when hit. The government will no doubt maintain that Mr. Faulcon killed James Brissette. The undersigned — and most importantly, the jury — find that very doubtful. It is clear from the jury's verdict that none of the defendants, specifically Bowen, Gisevius, Faulcon, nor Villavaso, fired the shots that Dr. Dimaio says killed James Brissette. But the obvious only other person who could have killed James Brissette did not get 10 years, 35 years or 60 years, as the defendants in this case are facing.

On December 1, 2011, U. S. District Judge Eldon E. Fallon sentenced Robert Barrios to the statutory maximum of 60 months, or five years, in prison. 18 U.S.C. § 371. Mr. Barrios, too, was not required to pay restitution to anyone. Perhaps recognizing that even considering that Barrios got the statutory maximum he could possibly get, the government did not argue for a reduced sentence based upon his cooperation (unlike the other cooperating defendants). In fact, at Mr. Barrios' sentencing, the government conceded that Barrios' assistance was of little value, since he was the last to plead and had nothing new which was not previously known to the government. But instead of facing a statutory minimum of 35 years like the defendants in this case, particularly his partner Mr. Villavaso (whose shots were not shown to have hit anyone), the government has allowed Barrios at least 30 years off of this minimum sentence, for reasons unbeknownst to the Court, and much to the Court's dismay. The plea deal with Mr. Barrios, along with that received by Mr. Hunter, have devalued the criminality of the actions committed by them.

As to all of these other cooperating defendants, the Court recognizes and supports the general idea of somewhat lesser sentences than they would have gotten had they not entered guilty pleas. This reduction, however, should come from that actual sentence which each might have received for the crimes he actually committed, i.e. "acceptance of responsibility." These are very serious crimes indeed, and any attempt to minimize the gravity of these crimes by re-labeling them, manipulating them, or most outrageously, simply ignoring the actions of these defendants, is irresponsible. Criminal activity, admitted from the mouths of the men who committed it, should not be merely clay in the hands of a clever prosecutor, regardless of the crime actually committed.

Anton Chekhov once said: "You will not become a saint through other people's sins." Likewise, these cooperating defendants are not innocent of the serious crimes they committed merely because they testified regarding other people's crimes. The government, however, has attempted to make it so. Instead, this process has been warped by the decision to obfuscate their real criminal activity, grossly reduce their sentences prescribed by Congress through artfully clever and expedient pleading in their respective indictments (or bills), all of which results in usurpation of this Court's role in determining the appropriate reduction of sentences proscribed for such criminal conduct.49 The negotiated prison terms of these "through-the-looking-glass" plea deals, which tie the hands of this Court and prevent careful, considered and prudent sentencing across-the-board, are an affront to the Court and a disservice to this community.

At a bench conference during the presentation of the defendants' case-in-chief, the government indicated it might file perjury charges against certain persons named as defense witnesses, based on prior conduct. Such is the government's prerogative, if warranted by the facts. But each of the testifying plea-deal defendants obligated himself to testify truthfully and honestly as part of their plea deals. After seeing them testify at trial, however, the Court has concerns about whether some truly did so (as already stated herein). The transcript of this trial will always be haunted by FBI Agent Bill Bezak's disconcerting characterization of Lieutenant Lohman's testimony, indicating "It's Mike Lohman's truth." (July 21, 2011 Transcript, p. 21, lines 2-14; see also p. 17, line 20 through p. 18, line 9; p. 23, line 22 through p. 24, line 5; and p. 36, line 13 through p. 37, line 6.) Agent Bezak tried to explain away the materially inconsistent testimony of his cooperating defendants as follows: When asked "How many different truths can there be?", Agent Bezak responded "Every person has their own memory, recollection, interpretation of events." (p. 21, lines 16-17.) Can false testimony be excused as a mere "interpretation of events?" There cannot be individualized "truths." Prevarication of witnesses cannot be — can never be — a means to reach the ends of justice.

On Saturday, September 3, 2011 (ironically almost 6 years to the date of these shootings), the U.S. Attorney for the Eastern District of Louisiana was quoted in the local newspaper regarding sentencing in another matter. He correctly said: "Any deceit, obfuscation, and certainly lying to the jury, not only triggers a higher sentencing guidelines but also eviscerates the chance of anyone getting assistance in sentencing. It angers the court." The undersigned certainly agrees that such conduct surely angers the court. In this case, however, some of the testimony of the cooperating former NOPD officers involved deceit and obfuscation before the jury — but they received very low maximum sentences and had the government vouching for them, contrary to the U.S. Attorney's statement.50 Lying to cover crimes, assuming fake names, and calling witnesses to lie to cover crimes, is most reprehensible; sentences will be imposed. Likewise, using liars lying to convict liars is no way to pursue justice.51 Perjured testimony, in both civil and criminal cases, should normally be referred to the U.S. Attorney's Office for further consideration and prosecution. To whom should those perjury charges be referrred, if it occurred during the government's case-in-chief? Unfortunately, to support its postulate, some fabrications, or "interpretations", were accepted by the government; others might be prosecuted. As U.S. Supreme Court Justice George Sutherland wrote over 75 years ago: "While the prosecutor may strike hard blows, he is not at liberty to strike foul ones."52

It has been said that the unprecedented enormity of the disaster of Hurricane Katrina should be a factor in considering sentences herein. Without a doubt, the day of Hurricane Katrina and the weeks and months that followed, were the greatest weather-related disaster to affect the main land in United States history. Recently, the Fifth Circuit recognized: "Indeed if Katrina was not an emergency, it is difficult to imagine any set of facts that would fit that description."53 As shocking and horrid as the defendants' actions were on September 4, 2005, and in the months and years that followed, the context of Katrina and its aftermath cannot be ignored. Indeed, photographs, videotape, television footage, oral and written accounts, and any other means of relating or describing the pervasiveness of the disaster and extraordinarily exigent circumstances is inadequate. In short, one would have to be here in the metropolitan New Orleans area that very morning to understand the sheer adversity and enormous loss. This in no way excuses any of the criminal conduct herein, however, it must be taken into account in determining the total length of the sentences rendered in this case.

For all of the reasons stated thus far, the Court will consider the totality of the circumstances as well as its sentencing responsibilities today, and grant a variance. Therefore, IT IS ORDERED that the following sentences are imposed on the remaining counts:

Defendant Kenneth Bowen is sentenced to a term of 60 months in prison for each of Counts 1, 3-6, 11,19, and 20, all terms to run concurrent; for a total of 40 years in prison.

Defendant Robert Gisevius is sentenced to a term of 60 months in prison for each of Counts 1, 3-6, 11 and 21, all terms to run concurrent; for a total of 40 years in prison.

Defendant Robert Faulcon is sentenced to a term of 60 months in prison for each of Counts 1, 3-6, 8, 11 and 22, all terms to run concurrent; for a total of 65 years in prison.

Defendant Anthony Villavaso is sentenced to a term of 36 months in prison for each of Counts 1, 3-6, 11 and 23, all terms to run concurrent; for a total of 38 years in prison.

Defendant Arthur "Archie" Kaufman is sentenced as follows:

For Counts 11, 14-18, and 24-25, 72 months in prison; for Count 12, 41 months in prison; and for Count 13, 51 months in prison; all counts to run concurrent to each other. As to some of these counts, this sentence represents a variance, which the Court finds appropriate under Booker and Fanfan, as well as the previously cited Supreme Court case of United States v. Gall and the Fifth Circuit case of United States v. Duarte. For all of the reasons I have previously stated today, particularly the government's evaluation of these crimes as assessed against Lieutenant Lohman, the leader of the conspiracy, and Mr. Lehrmann, who participated side-by-side, and both of whom committed all the crimes Mr. Kaufman committed. The variance is also supported by a very important letter received by the Court from Mr. William J. Renton, Jr., which is made part of the record. Mr. Renton is the retired Special-Agent-in-Charge, or SAC, of the Drug Enforcement Administration's New Orleans Field Division for a number of years. Mr. Renton's letter, dated October 27, 2011, provides great support for this Court's variance with regard to Mr. Kaufman's sentence. The Court relies on it heavily, just as it relied upon Special Agent Renton's important and valuable work for the DEA over a number of years. In fact, the Department of Justice, the U.S. Attorney's Office for the Eastern District of Louisiana, the FBI, and any number of law enforcement agencies relied upon Special Agent Renton's leadership and quite capable execution of his responsibility as the superior officer of the DEA in this Division. The undersigned, and the other judges of this Court, have observed and worked closely with Special Agent Renton over these years. In fact, the undersigned personally relied upon Special Agent Renton's representations with regard to the use of incarcerated criminal defendants to be released to participate in undercover DEA operations. On every occasion, Special Agent Renton's representation proved to be true, accurate, and rock solid. DEA Special Agent-in-Charge William J. Renton, Jr.'s correspondence alone provides support for the variance the Court has afforded defendant Kaufman in sentencing him today. So among the non-shooting "cover-up" conspirators, defendant Kaufman will serve 6 years; Lieutenant Lohman, the ranking officer and leader of the conspiracy, will serve 4 years; and defendant Lehrmann, who participated in each criminal act as the other two, will serve 3 years. These sentences are, in the Court's opinion, aligned.

Pursuant to 18 U.S.C. § 3553(c)(1), because the minimum and the maximum of the guidelines sentencing ranges for defendants Bowen, Bisevius, Faulcon, and Villavaso exceed 24 months, the Court, at the time of sentencing, is required to state, in open court, the reason(s) for imposing a sentence at a particular point within the range. The Court has done so. These sentences reflect the seriousness of the offenses, promote respect for the law, and provide just punishment for the offenses of which each defendant has been convicted.

The Court finds that defendants Bowen, Gisevius, Faulcon, Villavaso, and Kaufman do not have the ability to pay a fine. Accordingly, the Court waives the fine requirement for these defendants.

IT IS FURTHER ORDERED that:

(1) Defendant Bowen shall pay to the United States a special assessment in the amount of $1,000, representing $100 per count, which shall be due immediately.

(2) Defendant Gisevius shall pay to the United States a special assessment in the amount of $900, representing $100 per count, which shall be due immediately.

(3) Defendant Faulcon shall pay to the United States a special assessment in the amount of $1,100, representing $100 per count, which shall be due immediately.

(4) Defendant Villavaso shall pay to the United States a special assessment in the amount of $900, representing $100 per count, which shall be due immediately.

(5) Defendant Kaufman shall pay to the United States a special assessment in the amount of $1,000, representing $100 per count, which shall be due immediately.

Regarding supervised release:

(1) Upon release from imprisonment, defendant Bowen shall be placed on supervised release for a term of three (3) years as to each of Counts 1, 2, 3, 4, 5, 6, 7, 11, 19 and 20, with all terms to run concurrently.

(2) Upon release from imprisonment, defendant Gisevius shall be placed on supervised release for a term of three (3) years as to each of Counts 1, 2, 3, 4, 5, 6, 7, 11 and 21, with all terms to run concurrently.

(3) Upon release from imprisonment, defendant Faulcon shall be placed on supervised release for a term of three (3) years as to Counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, and 22, with all terms to run concurrently.

(4) Upon release from imprisonment, defendant Villavaso shall be placed on supervised release for a term of three (3) years as to Counts 1, 2, 3, 4, 5, 6, 7, 11, and 23, with all terms to run concurrently.

(5) Upon release from imprisonment, defendant Kaufman shall be placed on supervised release for a term of three (3) years as to Counts 11, 12, 13, 14, 15, 16, 17, 18, 24, and 25, with all terms to run concurrently.

Within 72 hours of his release from the custody of the Bureau of Prisons, each defendant shall report to the probation office in the district to which that defendant is released.

With respect to each defendant — Bowen, Gisevius, Faulcon, Villavaso, and Kaufman: while on supervised release, each shall not commit another federal, state, or local crime, shall not possess a firearm, shall not possess a controlled substance, and shall comply with the mandatory conditions required by 18 U.S.C. § 3583 and Section 5d1.3 of the United States Sentencing Guidelines, as well as the standard conditions that have been adopted by this Court. In addition, the following special conditions are imposed on each of you:

1. Participation in the orientation and life skills program as directed by the probation officer.

2. Payment of the special assessment imposed by this Judgment if it remains unpaid at the commencement of the term of supervised release.

All of the defendants are advised that their failure to comply with any of the mandatory, standard, or special conditions of supervised release, including the requirement that each pay the special assessment, may result in revocation of supervised release and imprisonment.

Pursuant to 18 U.S.C. § 3583(f), it is further ordered that the probation officer provide each defendant with a written statement setting forth all of the conditions to which his term of supervised release is subject.

IT IS FURTHER ORDERED that each defendant shall submit to the collection of a DNA sample pursuant to the DNA Analysis Backlog Elimination Act of 2000, as amended by Section 203(b) of the Justice For All Act of 2004.

Hopefully, these sentencings will bring further closure to the victims of these crimes, and to this City itself, for a truly morose chapter in the history of our police department and our city. Aside from the severe personal injuries suffered by the victims, it should be noted that the acts of these defendants and the cooperating defendants have marred the standing of all good and loyal police officers who have ever served this City with honor and distinction. In fact, many officers performed their duties after Hurricane Katrina, rescuing people, securing property and keeping the peace, without any expectation or desire whatsoever to be considered "heroes." They should be thanked, in recognition that not all NOPD officers are dishonest or guilty of wrongdoing. Most are not. In fact, even in this case, some of the defendants and cooperating defendants performed admirable acts in the aftermath of Hurricane Katrina, which are now unfortunately overshadowed by these convictions.