ORDER AND REASONS

KURT D. ENGELHARDT, District Judge.

Before the Court is the Motion for New Trial (Rec. Doc. 963) originally urged by defendant Arthur Kaufman, and joined in by the other defendants in this matter who were tried and convicted in 2011 (hereinafter referred to as "Defendants" or "the defendants).1 The government opposes this motion. (Rec. Doc. 1007.) The Court heard oral argument on the defendants' motion on June 13, 2012 (Rec. Doc. 1020). A detailed recounting of subsequent events is set forth in this Court's Order and Reasons dated November 26, 2012 (Rec. Doc. 1070). As an expected result of that Order, the Court is in receipt of additional information2 to which it was not privy at the time of its last Order. With such information and for the reasons stated herein, IT IS ORDERED that Defendants' motion is GRANTED.

For ease of reference, the following sets forth a "Table of Contents" for review of this Order:

                                       TABLE OF CONTENTS

                                                                                  Page

   I.  INTRODUCTION ..............................................................549

  II.  BACKGROUND: PART ONE-MAY 18, 2012 To NOVEMBER 26, 2012 ....................552

 III.  BACKGROUND: PART TWO-NOVEMBER 26, 2012 TO PRESENT .........................554

       A.  Special Attorney to the Attorney General-John Horn's Assignment .......554
       B.  Departures from the USAO ..............................................555

       C.  The Horn Report of January 25, 2013 ...................................555
       D.  The March 29, 2013 Supplement to the Horn Report ......................557
       E.  Further Inquiry of the Court, and the May 15, 2013 Meeting ............561
       F.  Second Supplemental Report of May 20, 2013 ............................564
       G.  Third Supplemental Report Dated June 17, 2013 .........................566
       H.  Fourth Supplemental Report Dated June 25, 2013 ........................566

  IV.  STATEMENT OF ISSUES .......................................................567
       A.  The Government's Opposition to Defendants' Motion .....................567
       B.  Questions Raised ......................................................567

   V.  GOVERNING LAW .............................................................568
       A.  Fundamental Guiding Principles ........................................568
       B.  Laws Governing Conduct of Prosecutors .................................568
       C.  Law Governing Motions For New Trial ...................................574

  VI.  THE MISCONDUCT ............................................................578
       A.  Former USAO Senior Litigation Counsel Sal Perricone ...................578
       B.  "Dipsos" ..............................................................583
           a.  The "Taint Team" Leader ...........................................583
           b.  The Kastigar Rulings .....................................586
           c.  "Dipsos" on Nola.com ..............................................586

       C.  An On-Line 21st Century "Carnival Atmosphere" .........................588
       D.  Sworn Testimony of Former First AUSA Jan Mann .........................603
       E.  Pre-Trial and Trial Concerns ..........................................608
           1.  The Government's Pre-Trial Timeline ...............................608
           2.  FBI Agent Bezak's Explanation of the Credibility of NOPD
                 Witnesses .......................................................610

           3.  Perricone's View of the FBI and the Potential Source of Rule 6(e)
                 Leaks ...........................................................610
           4.  Testimony of Cooperating Government Witnesses, and the
                 Refusal of Defense Witnesses to Testify .........................611
               (a)  Hunter .......................................................612
               (b)  Hills ........................................................612
               (c)  Barrios ......................................................613
               (d)  Lehrmann .....................................................613
               (e)  Haynes, Tollefson, and Gore ..................................614

 VII.  ANALYSIS ..................................................................615
       A.  Timeliness ............................................................615
       B.  Due Process ...........................................................617
       C.  Prejudice .............................................................619
           a.  Government Pressure ...............................................619
           b.  Influence on Jurors ...............................................621
           c.  Potential Influence on Witnesses ..................................622
       D.  Evidentiary Hearing ...................................................623
       E.  Disposition ...........................................................624

VIII.  CONCLUSION ................................................................627

I. INTRODUCTION

With a history of unprecedented events and acts, consideration of the defendants' motion has taken the Court on a legal odyssey unlike any other. With the relatively recent advent of the age of cyberspace and social media/networking, courts have anticipated a myriad of issues and potential controversies. This Court is unaware of any case, however, wherein prosecutors acting with anonymity used social media to circumvent ethical obligations, professional responsibilities, and even to commit violations of the Code of Federal Regulations. Hence, to the Court's knowledge, there is no case similar, in nature or scope, to this bizarre and appalling turn of events.

From the landfall of Hurricane Katrina on August 29, 2005, the subsequent failure of the levees surrounding the City of New Orleans resulting in massive and severe flooding of the metropolitan area, the exodus/evacuation of hundreds of thousands of people from southeast Louisiana both before and after August 29, 2005; the outbreak of intense and wide-spread civil unrest and the response of the New Orleans Police Department ("NOPD"), including the tragic events on the morning of September 4, 2005, in which two civilians were killed and others injured, some severely, by NOPD gunfire; the aborted prosecution in state court,3 the United States Department of Justice's ("DOJ") active take-over4 of this case in 2008, followed by this federal indictment on July 12, 2010; the multi-week trial during the summer of 2011, followed by the separate mistrial of severed defendant Dugue in January 2012; the noteworthy sentencing of the defendants to mandatory consecutive minimums;5 and the later discovery of disturbing online misconduct of the government throughout, the Court has dutifully attempted to negotiate all the twists and turns in order to apply fundamental bedrock principles in achieving the result here. In particular, the Court notes that the issue of prosecutorial misconduct involving at least two high-ranking members of the United States Attorney's Office for the Eastern District of Louisiana (USAO) has not been dispositively addressed by this Court, or any other, in a case where the defendants went to trial. Although other sections of this Court have encountered the misconduct of improper online posting by these two federal prosecutors in other cases,6 such issues have heretofore been raised only by defendants who had already entered guilty pleas, admittedly establishing all of the essential elements of the crimes for which they pled guilty and were sentenced. This case, however, involves at least one more posting prosecutor, and postings both significantly higher in quantity, and more egregious and inflammatory in quality, given the tone, timing, and identities of persons posting, than has been seen in prior cases.

In considering the present motion, which was filed on May 18, 2012, the Court has continued to receive more and more information albeit in the fashion of slowly peeling layers of an onion. During this time, the Court has remained ever cognizant of multiple factors, including: the sanctity of this jury's verdict and the undesirability of upsetting it; the consumption of resources by the government and the defendants in preparing to try this matter in 2011; the cost in financial and other resources in staging this trial; the efficient use of judicial resources; the substantial interest in achieving finality; and last, but certainly not least, the heavy emotional toll that the trial, and subsequent proceedings, have taken on the victims and their families, as well as the defendants and their families. Further, the undersigned has spent countless hours considering these factors against the backdrop of the longstanding integrity and respect afforded the United States criminal justice system and courts, and the special role of prosecutors, especially federal prosecutors from the Department of Justice acting in the name of the people of the United States of America. Try as it might to reconcile all of these interests, in light of the facts set forth, the Court is unable to achieve a disposition contrary to the one reached here, and most assuredly does not take such action lightly. Quite simply, in the most general sense, traditional notions and concepts of criminal justice cannot be served by minimizing such misconduct and preserving a verdict under these peculiar circumstances.

The Court is, of course, also very cognizant that, on September 4, 2005, two men died, while three others were seriously injured, under tragic circumstances at the hands of some of the defendants herein, and that the state court criminal justice system was corrupted to the prejudice of at least one victim, Lance Madison. Mr. Madison's riveting testimony — both at trial and at sentencing — is surely not soon forgotten. Indeed, it echoes in this case, making the abuses set forth herein all the more astonishing. This case started as one featuring allegations of brazen abuse of authority, violation of the law, and corruption of the criminal justice system; unfortunately, though the focus has switched from the accused to the accusers, it has continued to be about those very issues. After much reflection, the Court cannot journey as far as it has in this case only to ironically accept grotesque prosecutorial misconduct in the end.

For the most part, the Court will attempt herein to simply continue the chronology set forth in its Order and Reasons dated November 26, 2012 (which the Court considers and refers to as "PART ONE" of this saga), although some of the events described herein must necessarily be placed on the existing overall timeline in order to reflect the important context as it relates to this case. Additionally, as an exordium, the Court believes it prudent, for the sake of clarity, to first provide a brief summary of Part One.

At this juncture, the most precious commodities are candor and credibility, both of which seem to be in short supply, despite the best efforts of this Court and a couple of federal prosecutors from Georgia. But for the Court's disposition today, a detailed evidentiary hearing would be certain, and would be the only way to ascertain the entirety of facts surrounding these exploits and uncover the further extent of misdeeds herein. As will be explained, however, the Court does not find taking that likely arduous route to be necessary. In short, despite the many remaining questions that would have great bearing on the subject motion, the Court believes more than sufficient grounds exist warranting the disposition set forth herein.

II. BACKGROUND: PART ONE — MAY 18, 2012 TO NOVEMBER 26, 2012

Following their convictions and sentencings on multiple counts, Defendants, on May 18, 2012, filed the instant motion under Rule 33 of the Federal Rules of Criminal Procedure, arguing essentially two grounds. The first ground is that the government allegedly "engaged in a secret public relations campaign" designed to make the NOPD "the household name for corruption," inflame public opinion against the defendants and others involved with NOPD, establish community acceptance of the government's version of the facts "before anyone set foot in a courtroom," urge defendants and others to plead "guilty" as a result, and prejudice the defendants during trial through online activities designed to secure their convictions. The second ground for new trial is that the government, or someone associated with the government, allegedly improperly disclosed, to The Times-Picayune, L.L.C. ("Times-Picayune") and the Associated Press ("AP"), the government's theories regarding the defendants' alleged guilt, the status of plea negotiations, and the upcoming guilty plea of cooperating defendant and former NOPD lieutenant Michael Lohman, all in violation of Rule 6(e) of the Federal Rules of Criminal Procedure.7 At the time the instant motion was filed, the defendants based the first argument in large part on persistent online posting of "comments" by former USAO Senior Litigation Counsel Sal Perricone, who was exposed, on March 12, 2012, as the Nola.com8 poster "Henry L. Mencken 1951." Defendants suspected, but had no proof, that Perricone had posted under other pseudonyms in the past, and had been doing so for a long time. Defendants further alleged that others in the USAO became aware of and accepted Perricone's activities.

Oral argument on Defendants' motion was held on June 13, 2012. At that time, based upon the government's representations, including that of Jim Letten, then United States Attorney ("USA") for the Eastern District of Louisiana, the Court expressed considerable doubt about the merits of the motion. Nonetheless, in the interest of completeness, full disclosure, and seeking satisfaction that what obviously might be a very grave transgression by the government did not occur, the Court ordered the government to pursue an investigation of the leak of the Lohman plea. (Minute Entry, Rec. Doc. 1020; and June 13, 2012 Transcript, p. 44, 1.2-p. 45, 1.24.) The Court further ordered Defendants to set forth what they intended to cover at the evidentiary hearing requested of the Court. (Minute Entry, Rec. Doc. 1020; June 13, 2012 Transcript, pp. 46-47.)

Based upon Defendants' submission, the Court, on July 9, 2012, ordered the government to produce documents relating to any posting activity on the website Nola.com between the dates of February 17, 2010 (one week before the Lohman plea) and March 24, 2012 (approximately ten days after Perricone's activities were admitted). (Rec. Doc. 1034.) Both the investigation into the Lohman plea leak, and the gathering and production of documents in response to the July 9, 2012 Order, were handled by former First Assistant United States Attorney ("AUSA") Jan Mann, who also responded to the Court's inquiries regarding the investigation of Perricone that had been undertaken by the DOJ's Office of Professional Responsibility ("OPR").

Later, on October 10, 2012, because Perricone had not yet been questioned under oath about his online activities, but during an interview with a local magazine had asserted that in posting he had acted alone with no one else's knowledge, the Court undertook further questioning of Perricone under oath at a status conference. At the October 10th interview, Perricone admitted that he had used several other online user IDs, including "dramatis personae," "legacyusa," and "campstblue," but denied using or knowing the real life personas of several other commenters, including "eweman." He also reiterated that he had acted solo (referring to his postings as "my little secret"), and without the knowledge of anyone else at the USAO or DOJ. Perricone was also asked about various posts he made, including some relative to potential non-public grand jury information. Then First AUSA Jan Mann attended the conference on behalf of the government, and occasionally lodged objections on the record to questions posed of Perricone by defense counsel. Additionally, at the conclusion of the meeting, Mann, to the Court's surprise, professed suspicions that other court personnel might also be posting.

Thereafter, in a follow-up letter exchange with the undersigned, Mann stated that, in speaking at the October 10th conference, she "did not intend to suggest that anyone else in particular was posting," and that "[p]rior to the Perricone incident, [she] was not a follower of Nola.com postings and had no real sense of what was happening there." (Letter dated October 19, 2012 from former First AUSA Jan Mann to U.S. District Judge Kurt D. Engelhardt.) On Friday, November 2, 2012, however, a lawsuit was filed in Louisiana state court, alleging that Mann, as "eweman," had in fact posted inappropriate comments on Nola.com from November 2011 to March 2012. Days later, the Court was advised that the allegations were true.

At a status conference held on November 7, 2012, attended by all counsel and USA Letten, DOJ lead prosecutor Barbara "Bobbi" Bernstein advised the Court that neither she nor her "trial team" co-counsel9 were aware of the Perricone or Mann postings until they became public. Nevertheless, considering the gravity of the Perricone postings, and the unfortunate assignment by the government of then First AUSA Jan Mann to submit responsive investigatory information and other materials to the Court, in connection with both the alleged Rule 6(e) violation and the Perricone issue,10 the Court, expressing its dismay over the already-known troubling government hijinks, ordered the government, on November 26, 2012, to recommence compliance with its prior Orders, including an investigation of the leak of the Lohman plea pursuant to Rule 6(e), and a full and complete report regarding government internet posting activity relative to this case. (Rec. Doc. 1070.)

At that time, the Court indicated that defendants were surely correct in their suspicions of prosecutorial misconduct, but concluded that the facts, as of November 2012, still did not yet warrant an evidentiary hearing or the relief requested by the defendants. On the other hand, the Court clearly had sufficient grounds to continue seeking full and candid disclosure by the government of all relevant facts bearing on the defendants' motion. That being said, recognizing that the drastic action of overturning a jury verdict is not favored, and fully considering such action a last resort, the undersigned sincerely hoped that, with a clear, unequivocal and all-inclusive reliable report, the government could represent with confidence the breadth and ends of any unethical and unprofessional conduct directed towards the prosecution and trial of these defendants.

III. BACKGROUND: PART TWO — NOVEMBER 26, 2012 TO PRESENT

A. Special Attorney to the Attorney General — John Horn's Assignment

On December 3, 2012, following the Court's issuance of the November 26, 2012 Order and Reasons (Rec. Doc. 1070), John Horn,11 the DOJ's First Assistant United States Attorney for the Northern District of Georgia, was assigned as "Special Attorney to the Attorney General," pursuant to 28 U.S.C. § 515,12 to accomplish the tasks set forth in this Court's previous Orders of June 13, 2012 (Rec. Doc. 1020), July 9, 2012 (Rec. Doc. 1034) and November 26, 2012 (Rec. Doc. 1070, p. 49). Although the Court previously had afforded the government thirty days to properly compile those reports, an extension of an additional thirty days was requested and granted on December 21, 2012 (Rec. Doc. 1076). Mr. Horn's request for additional time also contained a "Status Report in Partial Compliance," dated December 19, 2012, which described the commencement of his investigatory efforts.

B. Departures from the USAO

Shortly after Mr. Horn's appointment, Jim Letten, United States Attorney for this district, resigned his office on December 11, 2012.13 Then, on or about December 14, 2012, First AUSA Jan Mann retired from the United States Attorney's Office; her husband, AUSA Jim Mann,14 retired the same day.

C. The Horn Report of January 25, 2013

On January 25, 2013, Mr. Horn submitted ex parte15 a "Report in Compliance with Order and Reasons Dated November 26, 2012" (hereinafter referred to as "the Horn Report" or "First Horn Report"). The Horn Report summarizes the government's compliance with the guidance set forth in In Re: Grand Jury Investigation (Lance), 610 F.2d 202 (5th Cir.1980), including the completion of nearly 200 interviews of various DOJ, FBI, and USAO personnel, as well as the submission of sworn affidavits of certain federal law enforcement personnel,16 regarding the grand jury proceedings and subsequent guilty plea of cooperating defendant/witness Michael Lohman. The Horn Report also further examines the conduct of Perricone and Jan Mann.

Regarding the premature media reports of Lohman's guilty plea agreement, the First Horn Report indicates that the media sources ("two people familiar with the investigation" and "a source close to the probe") responsible for the Lohman plea leak have never been identified, and that the publishers (the Times-Picayune and AP) of the information "formally rejected" DOJ's request for their identities (even in a general exclusionary sense, i.e., by group or category of potential persons). See First Horn Report, Attachment 10 (Letter from AP's counsel dated December 17, 2012; and letter dated December 17, 2012 from counsel for the Times-Picayune). Nonetheless, the body of evidence set forth in the Horn Report purports to rebut any assumptions under Lance that federal law enforcement personnel were the sources of the information reported. The Horn Report also indicates that, although attempts to negotiate with the Times-Picayune and AP for the disclosure of the identity of the sources (or even the general group from which they might come) failed, the DOJ believes it has sufficiently pursued the information through other sources (the aforementioned DOJ affidavits), and "has concluded that the factors required for the issuance of a subpoena to the reporters have not been met."17 Perhaps significantly, however, though it had been reported in the Times-Picayune that a subpoena had issued to discover the identities of at least eleven Nola.com user IDs of interest to Mr. Horn, the First Horn Report does not reference the other user IDs of persons obviously posting curiously similar information and/or opinions about DOJ/USAO business.

With regard to the internet postings of comments by Perricone and Jan Mann, the First Horn Report not unexpectedly concludes "that Mr. Perricone's and Ms. Mann's conduct reflects no broader effort/campaign within the USAO to provide non-public information about this or other cases through Nola.com or other websites." (Horn Report, p. 16.) However, Horn did learn that Perricone used (but could not recall) yet another user ID on the Nola.com website, but could not confirm the specific name. Likewise, Mann admitted that she too may have posted a few comments under a different user ID than "eweman" approximately one year before her first post as "eweman" (which would also be about six months before the start of this trial in June 2011). Nevertheless, although she reportedly could not recall that particular user ID, she assured the government investigators that those comments did not relate to DOJ matters. Both Jan Mann and Jim Mann declined to provide affidavits, although both agreed to be and were interviewed in December 2012.

Aside from those who used the internet to post comments concerning only non-DOJ matters, Horn also uncovered two other law enforcement personnel who posted about this case: (1) "the first employee, from the Civil Rights Division and who had first-hand knowledge of the Danziger Bridge case but was not a member of the prosecution team, ..." posted six comments under the pseudonym "Dipsos" over the course of four days of the Danziger Bridge trial in 2011; and (2) [DOJ agency employee "A"]18 in New Orleans who was not involved in the Danziger Bridge or Glover investigations ..."19 Neither law enforcement employee was named or further identified in the First Horn Report. Though the first was described as only an "employee" in the Civil Rights Division of the DOJ in Washington, D.C., the First Horn Report excused the posted comments by characterizing them as not "inflammatory, critical or prejudicial," and not containing grand jury or non-public information. As to the unnamed DOJ agency employee "A," the First Horn Report identifies only two (out of over 100) comments relating to this matter, both of which were made in connection with the mistrial declared in the separate Dugue trial in January 2012. Again, the First Horn Report concludes that these comments were not "inflammatory, critical, or prejudicial, or otherwise contained grand jury non-public information."

Finally, the First Horn Report also identified and produced several other previously undisclosed email communications that the Court ordered produced back on July 9, 2012 (Rec. Doc. 1034).

D. The March 29, 2013 Supplement to the Horn Report

After carefully reviewing the January 25, 2013 Horn Report and determining additional information was needed, the Court, on February 22, 2013, propounded thirteen questions/requests in response. These include the following:

* * *

On March 29, 2013, Mr. Horn and Ms. Alexander responded to these questions. The Supplemental March 29, 2013 Report (herein after, the "First Supplemental Report") disclosed that both former First AUSA Jan Mann and former AUSA Jim Mann had been interviewed under oath in the presence of a court reporter on November 15, 2012, by OPR attorneys.21 Thereafter, in December 2012, both were interviewed by Mr. Horn and Ms. Alexander, who were accompanied by a special agent with the DOJ Office of Inspector General (OIG). On that occasion, neither were placed under oath, and both, according to the First Supplemental Report, declined to sign an affidavit containing the answers given.22 Both reiterated their denial of being the source of any unauthorized release of information in connection with the Rule 6(e) issue.

The March 29, 2013 First Supplemental Report still conspicuously did not name the Civil Rights Division employee who posted as "Dipsos," an omission the Court found truly odd, and which further peaked its curiosity, especially given that the First Supplemental Report did further disclose that this "employee" actually is an attorney, who had gained first-hand knowledge of this case "pursuant only to her review of investigative materials and not by participating in the investigation or on the prosecution team." (First Supplemental Report, p. 3.) The First Supplemental Report then explained that:

Id.

In further response to the Court's February 22, 2013 queries, Mr. Horn reported that, in December 2012, counsel for the New Orleans FBI office "asked all employees in that office if they had engaged in any online posting activity relating to any federal or state criminal investigations." (First Supplemental Report, p. 4.) In addition, the First Supplement Report reiterated that Perricone did not recall the specific user ID he used that was similar to "fed up," though a search indicated six comments posted under this particular user ID ("fed up") occurring from October 12, 2009 to October 20, 2009, did bear some semblance to Perricone's writing style and content. But according to the First Supplemental Report, none of the comments relate to legal matters or cases. The First Supplemental Report also states that, although former First AUSA Jan Mann could not recall her prior user ID, she thought it possible that, approximately one year prior to registering as "eweman," she posted one or two comments in a single day about Louisiana Attorney General Buddy Caldwell in response to an article. Again, however, she had assured investigators that she did not post about DOJ matters using her unknown prior user ID.

In response to the Court's Question No. 7, the First Supplemental Report further explains that the government deferred its request [to media outlets] for information associated with the other eleven referenced user IDs "until such time that more specific evidence of misconduct was developed." The First Supplemental Report additionally states that, given other investigatory work, including obtaining affidavits from all USAO personnel, "we believe that the results [of the subpoena] yield little probative evidence when compared with the other evidence summarized in the Report." (First Supplemental Report, p. 8.)

Of significance, with regard to the Court's Question No. 8, the First Supplemental Horn Report admits that OPR did not initially inquire as to whether any other USAO employees had posted online comments,23 but asserts OPR did ask EDLA attorneys "to provide all information they possessed relevant to its inquiry regarding Perricone's postings." According to the First Supplemental Report, at that time "no USAO employee, including Jan Mann, volunteered that he or she had posted online comments in response to that question." (First Supplemental Report, p. 9.) The First Supplemental Report indicates that only later in November 2012, when it initiated its investigation into former First AUSA Mann's postings, did OPR specifically inquire as to whether any other employee had posted comments about DOJ matters on Nola.com or any other internet website.

In responding to the Court's Question No. 10, the First Supplemental Report deferred to the OPR's continuing investigation, relative to whether anyone in the USAO knew about Perricone's and/or Jan Mann's postings. Nonetheless, it reiterated the government's belief that neither Perricone nor Mann posted confidential information about this case; that no USAO personnel other than Perricone and Mann posted comments online about DOJ matters; and yet again denied that the comments posted by Perricone and Mann were part of a broader or collusive effort within the USAO, or federal law enforcement, to provide non-public information about this case, or any other cases, through Nola.com or any other websites.

On April 16, 2013, the Court held a status conference at the request of defense counsel, wherein an oral update of a general nature was provided.24 Defense counsel were not provided any of the Horn Reports or documents, or any substantive information based on such material.25

E. Further Inquiry of the Court, and the May 15, 2013 Meeting

On Monday, April 22, 2013, the undersigned contacted Mr. Horn via telephone26 to thank him for his prior efforts, but to also advise that a further request for specific documentation and materials would be forthcoming from the Court. During that conversation, the Court expressed a concern that the two previous Horn Reports seemed to not only contain appropriate factual information, but also further verbiage that either was anodyne in nature, or expressed advocation in the form of arguably debatable mitigating commentary.27 The undersigned further noted that some provisions of the Horn Reports seemed to incite obvious further inquiry or investigation, and thus follow up by the Court with Mr. Horn.

That same day, the Court requested, via email, eight additional items for in-camera review, including:

At that same time, the undersigned propounded ten more questions, including these:

On Wednesday, May 1, 2013, Mr. Horn and Ms. Alexander contacted the Court to request an in-chambers meeting, attended by a court reporter, to discuss their response to the April 22, 2013 queries. At the meeting on May 15, 2013, Mr. Horn and Ms. Alexander delivered some of the requested materials to the Court, with an explanation/clarification of the content and their attempts to gather information in response to the Court's request.

During the meeting, Mr. Horn also again raised the issue of the review of his reports by others in the DOJ. Mr. Horn assured the Court that, although drafts of each report were shown to various other DOJ/government personnel (including the prosecution trial team) to confirm accuracy, "Charysse and I hold the drafting authority for the documents that we submitted to the Court. We are the drafters of the language in it, of the factual findings, and the information that is summarized is what we have concluded and what our observations are." (May 15, 2013 Transcript, p. 20.) Mr. Horn additionally confirmed that "drafts were shared with our supervisors in the D[eputy] A[ttorney] G[eneral]'s office," but that, "[A]s far as any suggestions that were given by anyone other than anyone in the DAG's office, Charysse and I had the final authority over what content and what suggestions were made." Id.

While accepting Mr. Horn's assertion, the Court nonetheless again expressed its concern and objection to anyone editing his reports to either change or delete facts that have been found, or changing accurate information that was originally included, or adding verbiage in the nature of advocacy to mitigate what findings had been made. Id. at 26-27. In response, Mr. Horn stated forthrightly: "There's not been anything that anybody within the department [DOJ] has asked us to change in terms of correcting a fact or a representation that we've made in our report that has not been based on the intent to make it more accurate,..." Id. at 28. Mr. Horn continued:

Id. at 34-35.

During the May 15, 2013 meeting, the undersigned was told orally the identity of "Dipsos" by name for the first time. As will be discussed, it was a rather familiar one.

F. Second Supplemental Report of May 20, 2013

In further response to the Court's April 22, 2013 written inquiry, and as discussed at the May 15, 2013 conference, Mr. Horn and Ms. Alexander provided to the undersigned much of the materials requested, including transcripts of the interviews conducted by OPR, and related documents. Then, on May 20, 2013, Mr. Horn delivered his Second Supplemental Report responding to the questions posed, and the rest of the materials sought.

In that report, Mr. Horn indicated that Jan Mann was advised, in December 2012, that "she could answer all the [10] questions in the affidavit [previously utilized by OPR] or complete another form of the affidavit [containing only 8 questions] that omitted [the 2] questions about the OPR survey." After consulting with counsel, she agreed to answer the questions in the ten-question affidavit relating to the alleged disclosures. In so doing, however, Jan Mann again declined to submit an affidavit, but agreed to an interview "in the telephonic presence of an OIG Special Agent." Mr. Horn reported that Jan Mann's attorney "provided no legal basis for her decision not to sign the affidavit." (Second Supplemental Report, p. 2.) Mr. Horn also indicated his belief that the questions in the affidavit had been orally covered during the sworn November 15, 2012 interview of Jan Mann by OPR attorneys. To the contrary, however, in the DOJ's "Memorandum Of Investigation," reflecting the results of the Horn and Alexander interview of Jan Mann on December 21, 2012, Jan Mann was again asked only questions one through eight from the original ten-question affidavit presented by OPR during the summer of 2012. According to the Memorandum Of Investigation: "Mann was not asked questions nine or ten,29 because her attorney had previously advised Horn that Mann would not answer those questions. Mann declined to swear to the statement."

The Second Supplemental Report also revealed that, through his counsel, Perricone denied ever posting comments under the user IDs "martyfed" or "camp;" whereas through her counsel, Jan Mann similarly denied posting comments under the user ID "bowatch."

The Second Supplemental Report additionally confirmed that DOJ does not intend to pursue the subpoena it issued in January 2013 (relating to the eleven user IDs) to the NOLA Media Group, in light of its collection of affidavits. The DOJ concluded that pursuing the subpoena "would yield little additional probative evidence."30 (Second Supplemental Report, p. 5.)

In a truly disappointing and unsettling crucial development, the Second Supplemental Report also indicates that DOJ could not forensically recover computer data evidence from the USAO's internet portals for years 2010 and 2011 (prior to December 19, 2011) because it "did not retain data for the period before that." Id. Thus, critical information regarding further prosecutorial misconduct in the months before and during this trial seems forever unavailable.31

The Second Supplemental Report then indicates that, with one important exception (discussed infra at pp. 88-95), no evidence was found that USAO management had information about any other posters (besides Perricone) before November 2012, when the state court civil lawsuit against First AUSA Jan Mann was filed. Furthermore, the USAO reportedly held two staff meetings, led by former USA Jim Letten, in March 2012, shortly after the Perricone activity became known, wherein he urged all in attendance to advise him promptly if they had any information of like nature that should be disclosed before he addressed Perricone's conduct with the media. No one volunteered during either meeting that they had posted online comments.

The Second Supplemental Report further states that OPR will make its final report available for the Court's review when it is completed, but adds: "....it is difficult to predict with certainty the time at which OPR's final report will be available for disclosure to the court." (Second Supplemental Report, p. 7.) An expected time line of legal delays was provided, but suffice it to say, the Court does not anticipate the OPR final report to be forthcoming for many months after the date of this Order.

Finally, in further response to the Court's inquiry regarding DOJ persons participating in the preparation, including drafting, editing, approving, and/or supervising the Horn Reports to the Court, the Second Supplemental Report states:

(Second Supplemental Report, pp. 8-9.)

G. Third Supplemental Report Dated June 17, 2013

The Court reviewed the material delivered by Mr. Horn and Ms. Alexander on May 15 and 20, 2013, and thereafter asked seven more questions in the nature of clarification, none of which was of a substantive nature. A Third Supplemental Report was filed by Mr. Horn, on June 17, 2013, in response to the Court's inquiries.

H. Fourth Supplemental Report Dated June 25, 2013

As a matter of even further follow-up, the Court made two additional requests of Mr. Horn on June 18, 2013, to which Mr. Horn responded via a Fourth Supplemental Report dated June 25, 2013. The first of those questions related to the interview of Jan Mann; the second related to the DOJ agency employee "A." Then, on Friday, July 26, 2013, the Court requested the transcript or recording of the December 20, 2012, OIG interview of "Dipsos,"33 which recording was received on July 31, 2013.

As of that date, July 31, 2013, with the body of information gathered by Mr. Horn and Ms. Alexander, along with other information received and confirmed during this time period, the Court was strongly inclined to hold an in-depth evidentiary hearing, as originally requested by defendants, given that their allegations, based then on very few known facts, deductive reasoning, and supposition, had clearly blossomed into a series of newly-discovered facts and admissions, unanswered questions, additional apostasies, and a fetor extending far beyond the simple disconcerting notion of a single rogue prosecutor known to counsel and the Court at the hearing on June 13, 2012. But, with these admissions, and confirmed facts reported and verified sufficient to tip this matter toward disposition, the Court is able and instead finds it more appropriate to simply rule on defendants' motion now, for the reasons stated.

IV. STATEMENT OF ISSUES

A. The Government's Opposition to Defendants' Motion

In its original opposition memorandum (Rec. Doc. 1007), filed on June 5, 2012, the government staked out two general arguments: (1) the defendants' motion is untimely and must be dismissed without consideration of its merits; and (2) the defendants' motion should be denied because the defendants have failed to demonstrate a violation of their rights to due process. (Rec. Doc. 1007, p. 3.)

B. Questions Raised

Generally speaking, as reflected in the government's opposition memorandum, the Court is faced with a motion for new trial under Rule 33. This particular new trial request, however, unlike most, poses many interesting questions, some groundbreaking: (1) Initially, as raised by DOJ, was the defendants' motion timely filed when some of the government's conduct was not discovered until months later, and much of it is being disclosed to defense counsel for the first time in this Order? (2) Did the government violate the Code of Federal Regulations? (3) Did the government attorneys violate the other Rules of Professional Responsibility and Local Court Rules set forth herein? (4) Can the government do indirectly that which it is strictly prohibited from doing directly? (5) Can the government do in cyberspace, with anonymity, that which it is strictly prohibited from doing otherwise? (6) Because these posts by government attorneys were made anonymously (or under a fake name), should the Court overlook and excuse the fact that they were made by government prosecutors and employees of DOJ? (7) Was Rule 6(e) violated? (8) If Rule 6(e) was violated, by whom? (9) Are the defendants entitled to an evidentiary hearing on any or all of these issues? (10) Under these extraordinary circumstances, are the defendants required to show prejudice? (11) If so, have the defendants shown sufficient prejudice?

The Court again points out that a search of existing case law does not reveal that factually similar circumstances have occurred elsewhere in this nation (which is a relief, in a way) for prior court treatment. This is not entirely surprising, given that social media and internet posting are relatively new phenomena, and the minatory nature of the conduct occurring both before and during this high stakes trial. Any precedential discussion of them in the jurisprudence, however, would have been helpful. Nonetheless, with certain irrefragable facts before it juxtaposed against a number of unanswered material questions, the Court believes this matter can be disposed of at this time based upon longstanding fundamental principles of due process.

V. GOVERNING LAW

A. Fundamental Guiding Principles

"[F]air play ... is the essence of due process." Galvan v. Press, 347 U.S. 522, 530, 74 S.Ct. 737, 98 L.Ed. 911 (1954). Such fair play includes "the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves." Spano v. New York, 360 U.S. 315, 320-21, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959). This deep-rooted feeling extends even deeper where prosecutors are concerned, given their status as officers of the court bound to special rules of professional conduct. See, e.g., La. Rules of Professional Conduct, Rule 3.8 (Special Responsibilities of a Prosecutor).

Addressing the special obligations owed by federal prosecutors, in United States v. Lopez-Avila, 678 F.3d 955 (9th Cir.2012), the Ninth Circuit Court of Appeals recently explained:

Id. at 964-65. Having found prosecutorial misconduct committed by one AUSA, the Court of Appeals remanded the case to the district court to consider "two different courses of action that would deter future misconduct like this since `quite as important as assuring a fair trial ... is assuring that the circumstances that gave rise to the misconduct won't be repeated in other cases.' Kojayan, 8 F.3d at 1324." Lopez-Avila, 678 F.3d at 965-66. The two remedial options set forth by the Ninth Circuit are (1) retrial, or dismissal with prejudice, pursuant to the district court's supervisory powers over the attorneys who practice before it, and (2) discipline of the prosecutor(s) directly pursuant to a show cause order. Lopez-Avila, 678 F.3d at 966. The Ninth Circuit finally noted, as is the case herein, that the DOJ Office of Professional Responsibility (OPR) is required to review the conduct of the DOJ attorney involved.34

B. Laws Governing Conduct of Prosecutors

The conduct of prosecutors and other personnel of the DOJ is governed in several respects, the most significant here being 28 C.F.R. § 50.2. That provision of the Code of Federal Regulations states, in pertinent part:

* * *

[italic and bold face emphasis added.]36 Moreover, as if this provision in the Code of Federal Regulations is not sufficient and clear, much the same legal directive is contained in the DOJ's United States Attorneys Manual, Chapter 1-7.000, entitled "Media Relations." Those provisions state, in pertinent part [italics and bold face emphasis added]:

* * *

[italics and bold face emphasis added.]

In addition, and just in case the aforementioned federal regulation and the DOJ's U.S. Attorneys Manual were not quite enough, the United States District Court for the Eastern District of Louisiana has also enacted Local Criminal Rules, which state the following [italics and bold face emphasis added]:

* * *

[italics and bold face emphasis added.]

Finally, at all times, of course, the conduct of attorneys licensed to practice in the State of Louisiana also were and are governed by the Louisiana Rules of Professional Conduct. Rule 3.8 singles out those serving as prosecutors in the State of Louisiana with a clear and direct special obligation [italics and bold face emphasis added]:

[bold face emphasis added.] As for "Dipsos," the DOJ attorney identified in the Horn Reports, the Rules of Professional Conduct for lawyers practicing in Washington, D.C., are governed by the District of Columbia Rules of Professional Conduct. In particular, Rule 8.4 provides, in pertinent part:

* * *

[bold face emphasis added.]

The government might argue that violations of these regulations and directives are simply malum prohibitum and not malum in se. As discussed below, case law indicates otherwise.

C. Law Governing Motions For New Trial

Rule 33 of the Federal Rules of Criminal Procedure states:

Ordinarily, Rule 33 recognizes that if a trial court concludes for any reason that the trial has resulted in a miscarriage of justice, the court has broad powers to grant a new trial. United States v. Scroggins, 379 F.3d 233 (5th Cir. 2004), vacated on other grounds, 543 U.S. 1112, 125 S.Ct. 1062, 160 L.Ed.2d 1049 (2005). Nevertheless, motions for a new trial are to be granted with caution, United States v. Wall, 389 F.3d 457, 467 (5th Cir.2004), cert. denied, 544 U.S. 978, 125 S.Ct. 1874, 161 L.Ed.2d 730 (2005), and are generally subject to the harmless and plain error provisions of Rule 52 of the Federal Rules of Criminal Procedure. United States v. Valencia, 600 F.3d 389 (5th Cir.), cert. denied, ___ U.S. ___, 131 S.Ct. 285, 178 L.Ed.2d 141 (2010). In determining whether the substantial rights of the defendant were affected, courts may aggregate all alleged errors, under the cumulative effect doctrine, to determine if together any harmless errors are no longer harmless, making it necessary for a new trial to be granted. United States v. Barrett, 496 F.3d 1079, 1121 (10th Cir.2007).

In this instance, the Court again states the obvious: this motion for new trial has evolved and is not analogous to other motions for new trial featured in the jurisprudence. In fact, it is sui generis, difficult to categorize as either one based on newly discovered evidence;39 one based upon prosecutorial misconduct so significant and repugnant as to undermine these proceedings; or, most likely, a combination of both. Generally, however, a district court may grant a new trial, "if the interest of justice so requires," including, in some circumstances, because of newly-discovered evidence. Fed.R. Crim.P. 33.

Of course, in this motion, other grounds for a new trial resting on fundamental due process are urged. Thus, the matter is not as simple as a motion for new trial based on "newly-discovered evidence" in the traditional sense. Significantly, in Brecht v. Abrahamson, 507 U.S. 619, 638, n. 9, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), the Supreme Court, albeit on application for habeas relief, recognized and identified additional grounds for relief based upon prosecutorial misconduct:

One need only review the facts set forth herein, and in the Court's November 26, 2012 Order and Reasons (Rec. Doc. 1070), to discern that this is a most unusual case, involving "error" (or, more alarmingly, intentional conduct) that surely consists of a "deliberate and especially egregious" pattern of prosecutorial misconduct.

Further, the Court has found only three pertinent cases involving actual violations of 28 C.F.R. § 50.2.40 In two of them, convictions were vacated — one on motion for new trial and the other on habeas application. And, even in the third, although relief to the defendants was denied, the Court strongly condemned the government's actions.

The first of these cases is Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), in which the Supreme Court reversed the denial of the defendant's habeas petition, and remanded the case to the district court with instructions to issue the writ and order that Sheppard be released from custody, subject to further charges. Of particular importance, the Supreme Court found "the totality of the circumstances" approach should be taken when a defendant may have been deprived of due process because of ongoing prejudicial publicity saturating the community. Sheppard, 384 U.S. at 352-53, 86 S.Ct. 1507. Citing 28 C.F.R. § 50.2, the Court further stated:

Sheppard, 384 U.S. at 363, 86 S.Ct. 1507.

The second case, United States v. Capra, 372 F.Supp. 609 (S.D.N.Y.1974), decided long before the creation of "blogs," "chat rooms," "tweets," and various other internet posting/social media, was based upon publicity afforded by the government before and during trial. In Capra, the court denied the requested relief,41 but stated: "At the same time, it seems fitting to underscore that the mere gnashing of judicial teeth should not remain the sole response to such law enforcement behavior." 372 F.Supp. at 615. In the next paragraph, the court continued: "The United States Attorney scarcely embraces the whole of the matter when he concludes in this case that this particular trial has not been demonstrated to have been vitiated by sordid publicity." Id., at 616. Most importantly, the Capra court addressed 28 C.F.R. § 50.2:

Capra, at 611-612. [emphasis added].42

In the third case relating to 28 C.F.R. § 50.2, United States v. Narciso, 446 F.Supp. 252 (E.D.Mich.1977), the court also exercised its inherent supervisory authority to consider the "cumulative impact" of governmental misconduct in granting a new trial. Narciso, 446 F.Supp. at 301. The court explained:

Narciso, 446 F.Supp. at 302. The court continued:

Narciso, 446 F.Supp. at 304. Before reviewing the cumulative effect of a plethora of government misdeeds, including improper remarks by the prosecution and purported misconduct by the FBI, the court added:

Narciso, 446 F.Supp. at 306. The Narciso court concluded:

Narciso, 446 F.Supp. at 325 (citing and quoting Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935)). The court found that the prosecution's comments violated 28 C.F.R. § 50.2 and the Rules of the Department of Justice, as well as the Code of Professional Responsibility. Narciso, 446 F.Supp. at 319. The motion for a new trial was granted.

VI. THE MISCONDUCT

With these standards firmly in hand, the Court must, regretfully, recount and then analyze identified instances of government misconduct that are brought to bear in considering the defendants' motion. This evidence consists of: (a) the long-time online postings of then USAO Senior Litigation Counsel Sal Perricone; (b) the actions of "Dipsos;" (c) the online carnival type atmosphere fostered by at least two government attorneys; (d) the assertions of then First AUSA Jan Mann and the possible knowledge/complicity of others in the USAO and/or DOJ; and (e) other trial and pretrial concerns that emerged earlier in the case, but which must be considered anew, as part of the totality of the circumstances, and to evaluate the cumulative effect on the proceedings. As will be further discussed in the upcoming "Analysis" portion of this Order and Reasons, although any of these pieces of evidence, considered alone, might be of arguable legal import, the contrary is true when all of it, along with what remains unknown, is considered together. It is axiomatic that candor, credibility and transparency are the "coin of the realm" in circumstances such as these, and are foremost in the Court's consideration of the government's submissions.

A. Former USAO Senior Litigation Counsel Sal Perricone

As a familiar refrain starting in 2008 (and perhaps even earlier),43 Perricone, under his several monikers, habitually posted comments44 portraying the NOPD, its superintendent Warren Riley, and its officers and personnel in the most negative and vitriolic way. Specifically, during the long period of time in which this matter was being investigated by federal law enforcement, Perricone anonymously asserted online that the NOPD is "corrupt" and "ineffectual,"45 "totally disfunctional,"46 "an indolent agency,"47 "a joke for a long time,"48 and suffers from "cultural" problems.49 Indeed, not many NOPD news stories on Nola.com went unscathed by Perricone's anonymously-administered invectives. For example, on June 7, 2008, Perricone/campstblue posted:

The very next day, under an article about the suspension of an NOPD officer who engaged in an altercation with a Mississippi River bridge officer, he commented: "The sad thing is that the NOPD is full of officers like this."51 And under the same article, Perricone published a very memorable phrase: "There is an old Italian proverb: the fish rots from the head down."52

Perricone also labeled (future defense witness) NOPD Superintendent Warren Riley a "racist,"53 "inept,"54 and "delusional"55 and proclaimed generally that NOPD officers are "crap." Perricone/campstblue continued to rail: "[Riley] and his ENTIRE command staff needs to GO and NOW. Our lives and safety hang in the balance and he and his `men' are just out for their own enrichment."56 In July 2009, Perricone again called for Riley's resignation: "If this newspaper [Times-Picayune] genuinely had the city's interest at heart, they would immediately call for Riley's resignation, as well as the top brass of the police department. None of them have the people's interest at heart. NONE."57 In that regard, Perricone posted that "the Feds [DOJ] have zero confidence in Riley or the NOPD,"58 and further that "The Government [DOJ] needs to take over the police department. NOW!!!!!"59 As for NOPD leadership, Perricone twice on the same day offered a suggestion to the new mayor, Mitch Landrieu: "GET LETTEN OR ONE OF HIS BOYS60 OR GIRLS TO BE THE NEXT CHIEF!!!!!" That would scare the beeejeeeezuuuus out of the corrupt cops and excite the honest ones."61 Similarly, on July 10, 2009, 9:27 a.m., as legacyusa:

As "legacyusa," former AUSA Perricone continued his campaign against the NOPD into 2010 and up into July 2011, as this case was being tried. On January 10, 2010 (six weeks before former NOPD lieutenant and cooperating defendant Lohman entered his guilty plea), at 10:50 a.m., he posted:

Then, on December 3, 2010 (six months before this trial), at 6:53 a.m., Perricone offered a comment about the ongoing trial in United States v. Warren,64 No. 10-154, also concerning post-Katrina police activity:

He added on February 27, 2011 (four months before this trial, and only three days after the Lohman plea), at 9:20 a.m.:

And on May 15, 2011 (only five weeks before the start of this trial), at 10:22 a.m.:

Nor are the Court's concerns regarding Perricone's conduct limited to his posts about the NOPD. In its November 26, 2012 Order, the Court discussed in detail the testimony Perricone gave on October 10, 2012, following his 2012 resignation precipitated by his online postings, and the USAO's awareness, if any, of that activity prior to March 2012. At that time, the Court expressed its considerable doubt as to the truth of certain material assertions made by Perricone on October 10, 2012. (See Part One, Rec. Doc. 1070, pp. 27-32.) That sentiment has not changed. For example, because a critical feature of that inquiry related to the treatment of confidential and protected grand jury information, in accordance with Federal Rule of Criminal Procedure Rule 6(e), the Court allowed questions to be propounded to Perricone about his posting activity concerning former New Orleans District C City Councilman James Carter. (See Part One, Rec. Doc. 1070, pp. 29-31.) In particular, Perricone's explanation of his posts regarding a DOJ grand jury investigation of "the failed Algiers Landing project" garnered the Court's interest, as his explanation did not appear to make sense at the time.

Further demonstrating the infirmity of Perricone's proffered explanation of the posts is its factual falsity. That is, Perricone testified that, "before Katrina," he spoke to two NOPD officers in a coffee shop about the "downgrading" of criminal activity at the Algiers Point ferry landing. According to him, he recommended the officers "talk to the city councilman, [James] Carter," to which one NOPD officer purportedly responded, "are you kidding me? He's involved in it." Thus, with that explanation, Perricone purported to put to rest the Court's concern about a leak of the grand jury investigation into "the failed Algiers Landing project." Unfortunately, however, Perricone's explanation cannot possibly be true, as James Carter was not elected to the New Orleans City Council until the spring of 2006 (obviously after Hurricane Katrina, which occurred on August 29, 2005), and did not take office until June 2006. Along with the other passages the Court previously cited, in its November 2012 Order, this discrepancy cannot be considered minor, as it relates to a grand jury proceeding that was subsequently confirmed to be under way at the time of Perricone's posts.

Furthermore, even today the Court is left to wonder what other user IDs Perricone might have employed to post additional critical information, personal criticisms, and vituperative comments, about the NOPD and possibly other DOJ-related matters. Although Perricone denies use of specific user IDs68 about which he was asked, he admits, as previously stated, that he does not remember at least one other name he used to post online in the past.69 Thus, were the Court to hold an evidentiary hearing, Perricone undoubtedly would be summoned to provide supplemental testimony regarding various areas/matters not previously even considered on October 10, 2012, as they were not then known.

B. "Dipsos"

As previously explained, the Horn Reports revealed, for the first time, that a DOJ attorney, working in Washington D.C, had posted on Nola.com during the trial using the name "Dipsos." See, supra, pp. 557-58, 560, 561-62, and 564-65. To the Court's shock and dismay, "Dipsos" eventually was identified, on May 15, 2013, as Karla Dobinski, a trial attorney in the Criminal Section of DOJ's Civil Rights Division.70 To fully understand the significance of this revelation, additional information regarding certain pre-trial proceedings in this matter is necessary.

a. The "Taint Team" Leader

On occasion, during the course of certain investigations, particularly in police misconduct cases, officers are compelled to testify over the assertion of their Constitutional right not to do so. See Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), and Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). In those situations, a critical function of the government is to engage in a long established standard practice to insure that no immunized statement of a subject officer is used against that officer in a federal criminal prosecution. In fact, the Criminal Section of the DOJ's Civil Rights Division is charged with insuring the protection of those officers' rights under Garrity and Kastigar. (See Dobinski Declaration, Rec. Doc. 277-1, ¶¶ 4 and 10.)

This critical responsibility is assigned to a "taint team," which is charged with reviewing all of the evidence (including the immunized statements previously compelled) and then segregating and purging materials reflecting, or which might disclose, the immunized statements, in order to provide an untainted and sanitized body of evidence to DOJ prosecutors for their consideration. This standard practice might also warrant interviewing and screening witnesses by the taint team in order to verify and insure that no contents from an immunized statement reaches prosecutors in violation of the officer defendant's Constitutional rights. Thus, the function of the taint team, and its leader, is of obvious grave importance, and must be discharged with the utmost of care and prudence, to ensure that evidence turned over to DOJ prosecutors is filtered and pristine relative to the omission of immunized testimony and materials reflecting such testimony.

In this instance, the responsibility for this task was placed with Karla Dobinski, a Washington, D.C. trial attorney, working in the Criminal Section of the Civil Rights Division, U.S. Department of Justice, who was chosen to serve as the leader of the "taint team." (Dobinski Declaration, Rec. Doc. 277-1, ¶¶ 11-13; Dobinski Transcript, p. 82, 1.23.) With regard to this case, this crucial responsibility was Dobinski's professed single mission: to protect a defendant from use of his compelled testimony by the government. Indeed, her duties expressly excluded assisting the prosecution's investigation or trial strategy. (Dobinski Declaration, Rec. Doc. 277-1, ¶ 14.)

The Court first became acquainted with Dobinski at an April 18, 2011 pre-trial hearing held, pursuant to Kastigar, in response to a motion filed by Defendant Bowen concerning his prior compelled immunized testimony. At the hearing, the government relied almost exclusively on the testimony of Dobinski. (Dobinski Declaration, Rec. Doc. 277-1, ¶ 1; Dobinski Transcript, p. 82, 1.23.) Dobinski testified that she "headed the `taint team"' that was formed at the beginning of the active federal investigation, which she believed was in September of 2008. (Dobinski Declaration, Rec. Doc. 277-1, ¶ 1; Dobinski Transcript, p. 15.) Dobinski assured the Court that she, assisted only by a paralegal, did all of the screening herself. (Dobinski Transcript, p. 16, 1.1-2.)71 She further testified that she was entrusted with "boxes of documents" that were carefully Bates numbered and scanned into a database by litigation support personnel in the DOJ Civil Rights Division. (Dobinski Transcript, p. 17.) According to Dobinski, the taint team's purpose and mission was to "ensure the officers' rights under Garrity and Kastigar, i.e., to prevent the use of a compelled or immunized statement of such officer in a prosecution against him." (emphasis added) (Dobinski Transcript, p. 18.) In short, Dobinski was charged with using her considerable experience, judgment, and prudence as a meticulous "gate keeper" to prevent federal prosecutors' exposure to and use of immunized testimony previously compelled over a defendant's assertion of his Constitutional rights. As she herself testified, her admitted obligation was to protect the defendant (in this case, Bowen) from a violation of his Constitutional rights.

Significantly, Dobinski was no novice to her position as taint team leader in this matter, or lacking knowledge or expertise. To the contrary, Dobinski has been employed in the Criminal Section of the DOJ Civil Rights Division since April 198572 and has investigated and prosecuted police misconduct, racial violence and human trafficking cases since then. (Dobinski Declaration, Rec. Doc. 277-1, ¶ 3.) She also has participated on several "taint teams" in the past, including the one formed for United States v. Koon, 34 F.3d 1416 (9th Cir.1994), "provided advice and consultation to numerous federal and state law enforcement authorities, and provided training on the Garrity/Kastigar best practices." (Dobinski Declaration, Rec. Doc. 277-1, ¶¶ 5, 6 and 28.) She has been involved in this case since February 2007 (Dobinski Declaration, Rec. Doc. 277-1, ¶ 28), interacting as a "consultant" for both state and federal prosecutors. For reasons that should be obvious, the Court considers her role essential to the proper functioning to the dual federal and state criminal systems, and one which the Court could, without question, look to for complete trustworthiness, confidence and reliability.

Unfortunately, during the April 18, 2011 hearing, it was established that, despite Dobinski's expertise and described efforts, former NOPD officers and cooperating defendants Ignatius Hills, Michael Lohman and Michael Hunter had each viewed at least some portions of the transcript of compelled immunized testimony of defendant Bowen. (See Transcript, pp. 57-58; 64-65; 95-98-Hills; 98-100-Lohman; and 100-101-Hunter; Rec. Doc. 277-1, ¶ 49.) (See also Attachment G to Dobinski Declaration, Rec. Doc. 277-1, p. 25 of 26.)73 Dobinski also admitted on cross-examination that, on at least one occasion, a "mistake" was made when a duplicate copy of a document (Hearing Exhibit AA, Bates numbered MAD008414, etc.) somehow was turned over to the DOJ trial team unredacted, when it should not have been. (Sealed Transcript, Rec. Doc. 713, p. 118, 1.21-24.) (See Dobinski Declaration, Rec. Doc. 277-1, ¶ 47, which is contra.) Given these disclosures, Dobinski further testified that she had prepared a chart purporting to demonstrate that Bowen's compelled immunized testimony before the state grand jury could be sourced elsewhere in legally permissible ways. (Sealed Rec. Doc. 379, Exhibit 12.) Although Dobinski's chart cites the 54-page Kaufman report (Trial Exhibit 27) for certain pieces of information provided by Bowen's immunized testimony, there are discrepancies. (Sealed Transcript, Rec. Doc. 713, pp. 123-126.)

b. The Kastigar Rulings

As previously stated, Dobinski's assigned role is an important one. Indeed, on June 17, 2011, the Court, in ruling on defendant Bowen's first Motion to Quash the indictment against him (Rec. Doc. 262),74 relied exclusively on the testimony of Karla Dobinski, the only witness called, setting forth, both in her Declaration and April 18th live testimony, the careful "laborious process employed by the government's `taint team'..." (See Rec. Doc. 500, pp. 4-6.) Specifically, the Court denied Bowen's motion "on the showings made, and considering the information available at this stage of the proceeding." (Rec. Doc 500, p. 4, 7.) The Court also denied defendant Bowen's post-trial motion, seeking relief pursuant to Kastigar (Rec. Doc. 693), "on the showing made," (Rec. Doc. 840, p. 2), and referred back to its June 21, 2011 denial. (Rec. Doc. 500.) In so ruling, the Court again relied heavily on the Declaration and testimony of Dobinski wherein she claimed she assiduously went through each scintilla of evidence supplied to federal prosecutors. (Rec. Doc. 840, p. 2, fn. 3 & 4.)

c. "Dipsos" on Nola.com: "Taint Team" Leader Dobinski

As previously explained, the January 25, 2013 Horn Report, in discussing the posts of "Dipsos," initially characterized the person as "an employee" of DOJ; the March 29, 2013 First Supplemental Horn Report adds only that the employee is an attorney. Ultimately, on May 15, 2013, much to the shock and dismay of the Court, Mr. Horn and Ms. Alexander disclosed that Dipsos actually was not just any "employee," or just any "attorney," but instead was Dobinski, the person charged with defending the Constitutional rights of defendant Bowen by filtering his compelled testimony from the prosecution team.

Regarding Dobinski's posts and the proffered rationale for them, the First Supplemental Horn Report provides:

(Supplemental Horn Report, p. 3.) The Court finds this explanation tenuous and unconvincing, for several reasons.

First, Dobinski obviously followed the progress of this matter through trial. Putting aside the question of whether reports in the Times-Picayune newspaper were "not a good flow of information back about the trial events," Dobinski surely had access to various other media reports, as this trial was well-publicized each day in a number of electronic and print media venues. In fact, the Court even arranged for daily media access to a separate courtroom across the hall from the trial, wherein credentialed members of the media could monitor the trial, see the evidence on screen as it was displayed to the jury, and contemporaneously "tweet" or "blog," in real time, on their free news websites, which several of them did. (See Standing Order, Rec. Doc. 499, ¶ 4; and p. 76, fn. 87.) In addition, Dobinski knew at least one EDLA AUSA (Taylor),75 whom she led on the "taint team," and whom she could have contacted for updates. Furthermore, Dobinski and lead DOJ prosecutor Bernstein shared a longstanding relationship as co-workers in the DOJ Civil Rights Division, extending over two decades before this trial, suggesting that updates from Bernstein, or someone else on the trial team,76 would be easily accessible with a mere phone call or simple email.

Moreover, even had Dobinski been truly dissatisfied with the "flow of information back" about the trial, an internet blog of anonymous cyber-characters on Nola.com hardly seems the best place to obtain a "good flow" of accurate unbiased reporting. Indeed, the "comments" section on Nola.com is merely a vehicle for the expression of anonymous opinions, well-founded or not, about the particular story published by the journalist. Surely upon reviewing the "comments" under articles about this trial, Dobinski, ever the meticulous analyst of evidence and data, realized that the Nola.com "comments" hardly substituted for reliable reporting, or provided "a good flow of information."

Finally, and most critically, the nature and content of Dobinski's posts belie her claim that she posted on Nola.com merely to gain information about the trial. Assuming the name "Dipsos," Dobinski posted six times during the last week of the trial, repeatedly urging others to keep posting. She also specifically identified two of her fellow posters, "123ac" (whom she addressed five times) and "crawdaddy" (whom she addressed twice), for special approbation and encouragement, when those two commenters repeatedly posted vigorous pro-prosecution statements strongly condemning the defendants, their witnesses, and their entire defense. Expressing her appreciation for their posts, she proclaimed: "You are performing a valuable public service!" As "Dipsos," Dobinski additionally asked "123ac" if he/she would "cover the closings [closing arguments] as well;" and even answered a factual question from a third poster regarding where on the Danziger Bridge the Bartholomew family was shot. Thus, when the totality of known dialogue between Dobinski as "Dipsos," "123ac" and "crawdaddy"77 (among others), along with Perricone's posts regarding this case, is considered,78 Dobinski's defensive assertion that, for her own edification, she was merely seeking information otherwise unavailable from the prosecution team, the EDLA USAO, or even all regular media outlets,79 simply does not stand up to scrutiny.

In short, it is difficult to accept the story that an experienced trial attorney in the Criminal Section of the DOJ's Civil Rights Division, sitting in Washington, D.C. during this trial, with privity of knowledge of Bowen's compelled testimony, and charged with ensuring "that the officers' [constitutional] rights under Garrity and Kastigar are protected," would embark upon such a wanton reckless course of action, involving herself with two highly-opinionated trial observers, simply to obtain "a good flow of information back about the trial events." Less than 65 days before the start of this trial, Dobinski took the stand to explain in detail all of her extensive efforts to protect defendant Bowen's constitutional rights; yet before the jury even got the case for decision, she personally fanned the flames of those burning to see him convicted. Such gravely poor judgment surely calls into question the careful and meticulous effort she claims she exerted in protecting Bowen's rights. Moreover, such conduct significantly undercuts the government's original position that Perricone was a solitary government rogue80 in his posting activity about DOJ prosecutions, and substantially supports defendants' argument to the contrary.

C. An On-Line 21st Century "Carnival Atmosphere"81

With the additional activity of "Dipsos," and her two selected posters "covering" the trial, the chronological relevant anonymous posting activity by or related to the government,82 at least currently known to the Court, is as follows:83

On February 20, 2010 (only four days before the Lohman plea), at 8:23 a.m., under an article concerning the grand jury's investigation of this matter, Senior Litigation Counsel Perricone, as "legacyusa," posted:

(Kaufman Memorandum in Support, Rec. Doc. 963-21, Exh. 20, p. 40.) On February 23, 2010, the article prematurely announcing NOPD Lieutenant Michael Lohman's plea in possible violation of Rule 6(e) was first posted on the Nola.com webpage. Only nine and a half minutes after the original story was posted, at 6:17:30 p.m., Perricone provided advice and warning to those under investigation, including the defendants herein:

(legacyusa, Kaufman Memorandum in Support, Rec. Doc. 963-21, Exh. 20, p. 42.) Later that very evening (February 23, 2010), at 10:44 p.m. (on the eve of Lohman's guilty plea, and over four months before the grand jury returned the indictment in this case), Perricone addressed then-Sergeant Kaufman by name:

(legacyusa, Kaufman Memorandum in Support, Rec. Doc. 963-21, Exh. 20, p. 41.) Two days later, on February 26, 2010 at 7:04 a.m., Perricone added:

(legacyusa, Kaufman Memorandum in Support, Rec. Doc. 963-21, Exh. 20, p. 43.)

On May 20, 2010, at 9:27 p.m. (updated at 10:16 p.m.), almost two months before the grand jury returned its indictment, an article entitled "New Orleans Police Officer Resigns, May Enter Plea In Danziger Bridge Case," concerning cooperating defendant/government witness Ignatius Hills, was posted on the Nola.com website. At 10:41 p.m., only 75 minutes later, Perricone/legacyusa encouraged defendants to plead guilty, posting:

(Kaufman Memorandum in Support, Rec. Doc. 963-21, Exh. 20, p. 86.)

On August 13, 2010, under an article concerning the attorneys representing the defendants in the case of United States v. Warren, No. 10-154 (commonly referred to as "the Glover case," also involving post-Katrina police misconduct), Perricone/legacyusa commented negatively on the attorneys representing those five NOPD officers:

(Kaufman Memorandum in Support, Rec. Doc. 963-21, Exh. 20, p. 98.) Then, on November 19, 2010, at 7:49 a.m., during the Glover trial, legacyusa/Perricone offered:

(Kaufman Memorandum in Support, Rec. Doc. 963-21, Exh. 20, p. 110.) As the Glover trial progressed, Perricone/legacyusa, on December 3, 2010, at 6:53 a.m., attacked NOPD yet again:

(Kaufman Memorandum in Support, Rec. Doc. 963-21, Exh. 20, p. 113.) On December 12, 2010, at 10:34 a.m. (six months before this trial), after the split verdict in the Glover trial, Perricone/legacyusa previewed, criticized and debunked the defense he expected from Bowen, Gisevius, Villavaso, Faulcon, Kaufman and Dugue:

(Kaufman Memorandum in Support, Rec. Doc. 963-21, Exh. 20, pp. 115-116.) On June 22, 2011, promptly at 8:30 a.m., this Court and counsel began jury selection herein. Only ten minutes before Court was called to order, at 8:19 a.m., Perricone/legacyusa posted criticism of the defendants:

(Kaufman Memorandum in Support, Rec. Doc. 963-21, Exh. 20, p. 169.) On Wednesday, July 13, 2011, 11:45 a.m., as the prosecution put on its case, "crawdaddy" wrote:

On Thursday, July 14, 2011, 12:15 p.m., "crawdaddy" added:

On Saturday, July 23, 2011, 2:10 p.m., "123ac" weighed in with a strangely familiar critical analysis of NOPD, and a haunting echo of an old expression:84 Someone once told me that "when the fish rots, it rots from the head." The involvement of supervisors in the cover-ups of the Glover and Danziger Bridge travesties says to me that 1) the corruption is deeply-rooted and goes up the chain. 2) The fact that higher-ups helped cover-up says that's the way they came up in the department and so they train new members to lie, cover-up, look the other way, and if you get caught, retire as soon as possible sit back and collect a big pension.

On July 25, 2011, at 11:32 a.m., as the defense case was underway, Perricone/dramatis personae took a critical shot at the trial testimony of defense witness Warren Riley, former NOPD Superintendent:

(Kaufman Memorandum in Support, Rec. Doc. 963-22, Exh. 21, p. 3.)

— WEDNESDAY, JULY 27, 2011:

Defendant Robert Faulcon was the only defendant to testify at trial, and he did so on Wednesday, July 27, 2011. That evening, at 7:43 p.m., "123ac" continued with what "Dipsos"/Dobinski would later call "real information from the trial", by attacking the media coverage in addition to the defense:

In a separate post, at 7:59 p.m., "123ac" provided some legal analysis, and again turned his/her attention to news reports that were not pro-prosecution, and criticized more zealously:

At 8:24 p.m., "123ac" responded to other comments:

He [Faulcon] admitted on the stand today that he killed Ronald Masison. In a separate post, at 8:36 p.m., "123ac" reported and explained his/her interpretation of the evidence:

Shortly thereafter, at 9:21 p.m., "123ac" again attacked the defense:

Later that evening at 9:31:54 p.m. (approximately four hours later), "Dipsos"/Dobinski chummed the Nola.com waters by encouraging "123ac," with approval:

And again, twenty minutes later at 9:51:34 p.m., "Dipsos" reiterated:

Soon (at 10:23 p.m.), "crawdaddy" seconded the criticism leveled at WWL by 123ac and bashed the defense:

— THURSDAY, JULY 28, 2011:

The next morning, at 8:16 a.m., Perricone/dramatis personae could not resist posting another of his opinions publicly, taunted defendant Faulcon, and urged the jury to reject his testimony:

(Kaufman Memorandum in Support, Rec. Doc. 963-22, Exh. 21, pp. 5-6.) That afternoon, "crawdaddy" continued:

At 5:48 p.m., Perricone/dramatis personae persisted in his long-enduring campaign against defense counsel:

(Kaufman Memorandum in Support, Rec. Doc. 963-22, Exh. 21, p. 6.) That afternoon at 6:38 p.m., "crawdaddy" took on an important defense witness:

And at the same time, as the evidentiary portion of the trial was nearing its conclusion, "123ac," at 7:13 p.m., continued his/her keen pro-prosecution analysis of the evidence:

That evening, at 8:44:47 p.m., "Dipsos" again further encouraged "123ac" and "crawdaddy", among others, to continue their vituperative posts, to help not just her, but "the public," and even provided a factual answer to the question of another poster ("willyouplease"):

— FRIDAY, JULY 29, 2011:

At 10:50:14 a.m. (during work day hours), "Dipsos"/Dobinski urged even more posts from "123ac," "crawdaddy" and others:

Demonstrating some insight into criminal law (particularly the Fifth Amendment), a peculiarly specific and esoteric recollection of a recent prosecution in EDLA, and a persistent attempt to discredit the defense, 123ac responded, on July 29, 2011, at 10:57 a.m.

Soon thereafter, at 11:36 a.m., 123ac provided a lawyer-like outline of rebuttal witness Lakeisha Smith's testimony, and proclaimed defendant Kaufman's guilt:

Less than an hour later, at 12:26 p.m., 123ac provided further insightful legal analysis of defense witness Heather Gore's testimony by transcript, another lesson on witness unavailability and praise for the government's rebuttal case. Interestingly, 123ac also took the opportunity to make a full-throated attack on the NOPD generally, and again referenced the two specific occasions (during the trial of U.S. v. Gill Pratt) where witnesses were not available:

That afternoon, at 2:25:46 p.m.(again, during normal work day hours), begging for even more posts, "Dipsos" encouraged "123ac" to "cover the closings" after requesting that "123ac" post "more real information":

At 9:08 p.m., "crawdaddy" commented:

— SATURDAY, JULY 30, 2011 and SUNDAY, JULY 31, 2011:

In the wee hours of the morning, at 1:02:12 a.m., "Dipsos" returned to Nola.com to aid and abet further posting by her two favorite posters, in addition to all others (which obviously would include Perricone masking as "dramatis personae") as "a valuable public service":

Later that morning, on July 30, 2011, at 8:44 a.m., Perricone/dramatis personae obliged the request of "Dipsos" by predicting Kaufman's conviction with another taunt:

ByeBye Archie [Kaufman]....

(Kaufman Memorandum in Support, Rec. Doc. 963-22, Exh. 21, p. 9.) At 11:19 a.m., "crawdaddy" responded:

"Crawdaddy" revised, at 11:31 a.m.:

In a separate post, at 6:29 p.m., "crawdaddy" focused on defendant Villavaso, proactively proclaiming his guilt over any notion of reasonable doubt:

Upon a discussion of the strange coincidence that a person with the same name ("Lakeisha Smith") as that fabricated by Lehrmann and Kaufman actually did reside only a few blocks from the Danziger Bridge, 123ac, at 11:38 p.m., sought to remove any doubt as to the guilt of defendant Kaufman:

— TUESDAY, AUGUST 2, 2011:

At 2:53 a.m., "crawdaddy" demanded guilty verdicts:

At 10:27 a.m., as closing arguments began in this matter, Perricone/dramatis personae again focused on NOPD corruption:

(Kaufman Memorandum in Support, Rec. Doc. 963-22, Exh. 21, p. 13.) At the end of the closing arguments, 3:17 p.m., "crawdaddy" again demanded a guilty verdict:

— WEDNESDAY, AUGUST 3, 2011:

At 11:54 a.m., apparently febrile with anticipation, "crawdaddy" repeated:

On the morning of the first day of the jury's deliberations, Perricone/dramatis personae weighed in, at 7:06 a.m., and also demanded a guilty verdict:

(Kaufman Memorandum in Support, Rec. Doc. 963-22, Exh. 21, p. 13.) At 8:57 a.m., he (Perricone/dramatis personae) further "explained":

(Kaufman Memorandum in Support, Rec. Doc. 963-22, Exh. 21, p. 13.)

— THURSDAY, AUGUST 4, 2011:

On the next day, the jury's deliberations continued. At 5:53 p.m., as the second day of deliberations concluded, Perricone/dramatis personae expressed his expectations of the jury:

(Kaufman Memorandum in Support, Rec. Doc. 963-22, Exh. 21, p. 31.)

— FRIDAY, AUGUST 5, 2011:

The jury returned its verdict. Only hours after the guilty verdicts in this case were rendered, Perricone/dramatis personae, concerned that praise for the verdicts did not extend to the Eastern District U.S. Attorney's Office, posted:

(Kaufman Memorandum in Support, Rec. Doc. 963-22, Exh. 21, pp. 19-20.) A couple of hours later, at 3:09 p.m. that very day, Perricone/dramatis personae directed a threatening post to the subject of another grand jury investigation and indictment, Dominick Fazzio,94 who happened to then be represented by Kaufman defense attorney Steve London:

(Kaufman Memorandum in Support, Rec. Doc. 963-22, Exh. 21, p. 19.) At 11 p.m. that evening, Perricone/dramatis personae yet again opined about NOPD with a now familiar refrain:

(Kaufman Memorandum in Support, Rec. Doc. 963-22, Exh. 21, p. 19.) The next morning (August 6, 2011), at 7:32 a.m., Perricone/dramatis personae continued his analysis:

(Kaufman Memorandum in Support, Rec. Doc. 963-22, Exh. 21, pp. 18-19. And on August 9, 2011, at 7:59 a.m., Perricone/dramatis personae added:

(Kaufman Memorandum in Support, Rec. Doc. 963-22, Exh. 21, p. 24.) And less than four hours later, on August 9, 2011, at 11:43 a.m.:

(Kaufman Memorandum in Support, Rec. Doc. 963-22, Exh. 21, pp. 24-25.) Not yet finished with Kaufman's defense counsel Steve London, Perricone (now as "Henry L. Mencken 1951") posted on September 21, 2011, at 6:26 a.m.:

(Kaufman Memorandum in Support, Rec. Doc. 963-23, Exh. 22, p. 35.) And on November 5, 2011, three whole months after this trial ended, at 8:23 a.m., Perricone/"Henry L. Mencken 1951")96 persisted:

(Kaufman Memorandum in Support, Rec. Doc. 963-23, Exh. 22, p. 49.)

D. Sworn Testimony of Former First AUSA Jan Mann

As set forth in the Court's prior Orders, former First AUSA Jan Mann's direct in-court involvement on behalf of the USAO in this matter began with her appearance on June 13, 2012 at the hearing of this motion. Her role ended on November 5, 2012, when the undersigned was advised by former USA Letten that she too had posted on Nola.com.97 Additional information obtained during the course of Mr. Horn's investigation, such as Jan Mann's testimony discussed herein, substantially increases the Court's concerns that Nola.com posting activity about this case, and others, by government attorneys and personnel, was far more extensive than previously suggested, and even presently known.

Attorneys from OPR took the sworn testimony of former First AUSA Jan Mann on November 15, 2012, less than two weeks after her exposure as "eweman." Her November 15th testimony, particularly in the context of the transcript of her August 8, 2012 interview,98 also is critical to the Court's ruling today. Jan Mann had "supervisory responsibilities" on a number of cases99 about which she posted (See Jan Mann November 15, 2012 Transcript, pp. 26, 69, 71 and 75), and as First Assistant U.S. Attorney, supervised the work of AUSA Ted Carter (and AUSA Julia Evans, during her involvement), members of the prosecution team in this case. In her November 15, 2012 testimony, Jan Mann related the events surrounding the March 2012 exposure of Perricone as "Henry L. Menckenl951." She further asserted, quite definitively, that in the days between the filing of the Heebe lawsuit against Perricone, and USA Letten's March 15, 2012 press conference acknowledging Perricone as "Henry L. Menckenl 951," she advised Letten that she, too, had posted on Nola.com. See Jan Mann November 15, 2012 Transcript, pp. 114, 117, 120-121, 124, 168, 205, 210, 211-213, 216, 229, 235, 239-241, 243-244. She stated, "He didn't have a big reaction" (p. 117, 1.13), and admitted that, on the occasion she told him, "I was definitely trying to downplay it," and "I didn't want him to get too upset yet." (Id., pp. 122-123.) She added that the fact of her posting came up only obliquely on a few occasions between March and November 2012:

(Jan Mann November 15, 2012 Transcript, p. 143,1.3-p. 144,1.9. See also pp. 207-208, 285-286.)

As to whether others at DOJ were advised of her "eweman" posting activity, Jan Mann responded:

(Jan Mann November 15, 2012 Transcript, p. 140, 1.7-p. 141, 1.5.) Even more telling regarding the possibility of then USA Letten's knowledge, and regarding the possible knowledge of others "up the chain" at DOJ, is this passage:

(Jan Mann November 15, 2012 Transcript, p. 168, 1.5-p. 170, 1.5.)

Former First AUSA Jan Mann drew support for this belief from the fact that DOJ, and specifically OPR, initially did not ask seemingly the obvious question101 of whether any other USAO personnel commented online [emphasis added]:

(Jan Mann November 15, 2012 Transcript, p. 163, 1.20-p. 165, 1.6.)102 During the course of her November 2012 testimony, Mann specifically recalled the careful wording of the press release regarding Perricone's activities in light of her belief that USAO personnel other than Perricone and herself were similarly posting online:

(Jan Mann November 15, 2012 Transcript, p. 136, 1.21-p. 138, 1.9.)

Jan Mann further described two meetings USA Letten held regarding the Perricone situation: one with supervisory personnel, and the other with the all the USAO's staff. On both occasions, Jan Mann recalls Letten stating: "if anybody has anything they want to tell me, you know, come see me right after this, because I'm going to, you know, let the public know that this is not some widespread thing, that this was Sal, and we believe it's just Sal." (Jan Mann November 15, 2012 Transcript, p. 154, 1.18-24.) Letten advised the staff that he did not want to be "blindsided" and "embarrassed" in having a press conference making such representations, only to find that they were not true.103 Mann recalled: "He wasn't ever asking has anybody everblogged, because we had discussed that. He didn't want to ask people that. Washington didn't want us to ask that. It was all about sitting with Sal and commenting or putting our stamp of approval on Sal's comment." (Jan Mann November 15, 2012 Transcript, p. 157, 1.15-21.) Jan Mann further recalled:

(Jan Mann November 15, 2012 Transcript, p. 158,1.12-p. 159, 1.4.) Jan Mann further stated, "I've never lied to him. I have never lied to him about anything and I never would. And I tell him everything. I tell him everything." (Jan Mann November 15, 2012 Transcript, p. 126,1.8-11.)

The Court does not have former USA Letten's description of the events of March 13, 2012 and thereafter. Suffice it to say, if it coincides with his First Assistant's recollection, and concealed knowledge of internet posting extending beyond those who have, at least up to this point, admitted their activities, the defendants' suspicions would seem to have been borne out as truth, regardless of whether the posting activity was purposefully orchestrated or not. In the event that former USA Letten were to dispute Jan Mann's testimony, an evidentiary hearing would certainly be in order, at which credibility could be measured in a pitched internecine battle between various prosecutors, both from EDLA and DOJ, as well as other agency personnel. At present, however, the Court does not believe such an exercise necessary or, for that matter, productive. Rather, the Court leaves to the various bar associations and other attorney regulatory bodies the question of who knew what, when they knew it, and whether they discharged ethical and professional responsibilities to report/disclose it. For purposes of disposing of the defendants' present motion, it is sufficient for the Court to glean from Jan Mann's sworn testimony: (1) USA Letten was, according to his First Assistant, aware of her posting activity in March 2012; (2) the First Assistant USA suspected and believed the USA reported this up to other supervisors at DOJ; (3) the First Assistant USA "believe(d) in her heart" that other AUSA's were likewise posting comments on Nola.com; and (4) the First Assistant USA believes the USA and DOJ purposefully avoided such a portentous inquisition, instead maintaining the denial of an organized "propaganda campaign."

E. Pre-Trial and Trial Concerns

The Court's record for this matter reflects that concerns about misconduct, and disregard of legal and ethical obligations, surfaced early in the proceeding. Indeed, on more than one occasion, the Court has expressed that it was "disappointed and troubled" by the government's handling of particular matters herein. Now considered together with the aforementioned government misconduct discussed herein, discovered only after the defendants were convicted, these matters form part of the totality of circumstances convincing the Court that the defendants' motion should be granted.

1. The Government's Pre-Trial Timeline

For instance, on April 18, 2011, the Court held an evidentiary hearing on a motion filed by defendants Gisevius and Villavaso seeking to suppress statements purportedly obtained in violation of the Sixth Amendment. (Rec. Doc. 255.) That motion involved, in part, allegedly improper contact between the FBI and defendant Villavaso the very day after Villavaso and his counsel met with DOJ prosecutor Bobbi Bernstein and FBI Special Agent Bill Bezak wherein all agreed that any further contact with Villavaso would be done through counsel. The Court considered this allegation to be a serious one, and ex proprio motu ordered the pre-hearing submission of a detailed timeline from the government reflecting the chronology of material events relative to this issue. Prior to the hearing, in response to the Court's Order, the government submitted a timeline clearly showing that, in fact, on March 25, 2010, Bernstein and Bezak met with Villavaso's counsel (Mr. Kitchens and Mr. Kearney), and that on the very next day, March 26, 2010, Bezak, with Bernstein's approval,104 "wired" and sent cooperating defendant Robert Barrios (Villavaso's former NOPD partner) to engage in a taped (unbeknownst to Villavaso) conversation. Further, at the April 18, 2011 hearing, Bezak gave sworn testimony confirming that these events indeed did occur as represented on the government's timeline submitted pre-hearing. (See Transcript of April 18, 2011, Testimony of FBI Agent Bezak, pp. 195, 1.21-p. 198, 1.10.) Under questioning from prosecutor Bernstein, Bezak testified [emphasis added]:

(See Transcript of April 18, 2011, Testimony of FBI agent Bezak, pp. 202, 1.8-p. 203, 1.10.) However, to the contrary, Bezak admitted that defendant Barrios was in fact a cooperating defendant on March 26, 2010, and the FBI had "wired" Barrios before directing him to covertly get a statement from defendant Villavaso not 24 hours later. (Transcript of April 18, 2011, Testimony of FBI agent Bezak, p. 197, 1.8-25.) Bezak expressed no reservations or hesitation about this chronology.

The Court, however, was quite concerned about this turn of events, and, as a result, the Court ordered post-hearing supplemental briefs. Several days later, prosecutor Bernstein advised the Court that, in fact, the timeline (as well as her questioning and Bezak's testimony) was in error, and the taped Barrios-Villavaso conversation actually had occurred approximately ten days before the meeting between Villavaso's counsel, Bernstein, and Bezak, which was held on April 6, 2010, rather than March 25, 2010, as originally reported. In its May 20, 2011, 2011 WL 1979949, Order denying the defendant's motion (Rec. Doc. 396), the Court strongly expressed its dissatisfaction over such an important error:

See Order of May 20, 2011, p. 2, fn. 2. It was then hoped that Bezak's lack of precision and inattention to detail would not foreshadow other difficulties in such a high-stakes prosecution.

2. FBI Agent Bezak's Explanation of the Credibility of NOPD Witnesses

Unfortunately, the Court's concerns regarding FBI Special Agent Bezak continued. Specifically, at trial, when pressed on the witness stand to explain material differences between the testimonies of cooperating defendants (and others who were not charged), particularly the divergence of Michael Lohman's testimony from that of other government witnesses, Bezak paused and offered only a very disconcerting characterization of Lieutenant Lohman's testimony: "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 further explain away the materially inconsistent testimony of his cooperating defendants: When then asked, "How many different truths can there be?", Bezak delicately responded, "Every person has their own memory, recollection, interpretation of events." (p. 21, lines 16-17.) As this Court has previously stated, there cannot be individualized "truths", excused as "interpretations" when the witness' testimony is favorable to the prosecution, but threatened with perjury when the "interpretation" is not.

3. Perricone's View of the FBI and the Potential Source of Rule 6(e) Leaks

At this juncture it is worth noting that Perricone himself, who spent a career in law enforcement as a NOPD detective, FBI Special Agent, and then Assistant U.S. Attorney, frequently expressed prior critical opinions of the local FBI generally and the shortcomings he perceived. In addition to his remarks referring to FBI Supervisor Charles McGinty as one who may have leaked information (See Part One, Rec. Doc. 1070, p. 16, fn. 20), Perricone occasionally blasted former Special Agent-in-Charge James Bernazzani.105 He also explained, generally:

(campstblue, May 4, 2008, 6:29 p.m.)(Kaufman Memorandum in Support, Rec. Doc. 963-20, Exh. 19, p. 15.)

(campstblue, April 25, 2009, 9:50 a.m.)(Kaufman Memorandum in Support, Rec. Doc. 963-20, Exh. 19, p. 101.)

With further regard to the FBI, in his October 10, 2012 testimony, Perricone indicated that he suspected "multiple leakers" of sensitive DOJ information, including grand jury information, sourced at the FBI. (See October 10, 2012 Testimony of Perricone, p. 89, 1.22-p. 90, 1.1; p. 93, 1.15-20), confirming that he "always suspected that the FBI had loose lips ..." (See October 10, 2012 Testimony of Perricone, p. 94, 1.7-9.) At times material to the investigation and prosecution of this case, David W. Welker was Special Agent-in-Charge (SAC) of the FBI's New Orleans Division, having been named as such, upon Bernazzani's departure, on June 9, 2008. On April 18, 2009, under an article about Welker, while the government's investigation into this matter was well under way, campstblue/Perricone posted:

(campstblue, April 18, 2009, 10:46 p.m.)(Kaufman Memorandum in Support, Rec. Doc. 963-20, Exh. 19, p. 90.) A few months later, on September 27, 2009, at 10:53 a.m., Perricone/legacyusa further opined:

(Kaufman Memorandum in Support, Rec. Doc. 963-21, Exh. 20, pp. 13-14.)

4. Testimony of Cooperating Government Witnesses, and the Refusal of Defense Witnesses to Testify

Insofar as the trial itself is concerned, the Court has also, in the past, commented on the highly questionable credibility of certain witnesses who appeared at trial, and why a few did not, as well as seemingly coercive106 tactics by the government. (See, e.g., Rec. Doc. 593, pp. 6-8 and Rec. Doc. 794, p. 17, n. 23, pp. 39-52). A cavalier attitude toward the truth cannot be indulged at any juncture or level.

(a) Hunter

Officer Michael Hunter pled guilty to conspiracy to obstruct justice and misprision of a felony, exposing him to a maximum sentence of eight years. Disregarding the calculated sentencing guidelines, U.S. District Judge Sarah Vance sentenced Hunter to the full eight years in prison. At the time he was sentenced, Chief Judge Vance stated that she found that Hunter's cooperation "was the product of cold calculation", and that his trial testimony was "inconsistent" and "self-serving", particularly when compared to the Factual Basis he signed in connection with his guilty plea and the video shown at trial. Judge Vance expressly questioned how much Hunter truly accepted responsibility for his actions, and pointed out that Hunter got the benefit of his bargain up front under what she described as "a highly generous plea agreement." (See United States v. Hunter, No. 10-86.)

This Court also evaluated Hunter's testimony when considering earlier motions for judgment of acquittal and for new trial (Rec. Doc. 575, 576, 577, 578, and 579.) Those motions were directed, in part, to Count X, in which the government alleged that defendant Bowen "kicked and stomped Ronald Madison while Madison was on the ground, alive but mortally wounded ..." The charge set forth in Count X was directed only at defendant Bowen, and was supported only by Hunter's uncorroborated testimony. (See Rec. Doc. 593, "Order and Reasons" wherein the Court discusses Hunter's testimony.) In opposing the earlier defense post trial motions, the government abandoned Count X, failing to even mention it in its 28-page memorandum. In granting Bowen's motion directed to Count X, the Court noted that Hunter's credibility was so grievously called into question at trial that the Court had taken the unprecedented (for the undersigned) step of ordering the production of FBI Agent Bezak's handwritten notes of interviews he conducted with Hunter. Hunter's trial testimony was significantly and quite materially at odds with Agent Bezak's, and directly contradicted many of the written Form 302 notes expressly (and contemporaneously) made by Agent Bezak while interviewing Hunter. Indeed, Hunter's repeated departures from these previous statements given by him to the FBI made his testimony practically useless in the government's efforts to meet its burden of proof, as more extensively explained in the Court's October 20, 2011 ruling (Rec. Doc. 593).

(b) Hills

Questions and uncertainty likewise surround the testimony of another cooperating witness who entered a plea, Officer Ignatius Hills. Hills rode in the back of the Budget rental truck from the Crystal Palace to the Danziger Bridge, but he did not exit the truck with the other officers. From the back of the truck, Hills saw 14-year-old Leonard Bartholomew, III, running down the bridge, away from Hills. Hills' response was to fire his side arm twice at the fleeing teenager, albeit missing both times. As part of his plea agreement with the government, Hills pled guilty to obstruction of justice and misprision of a felony, for a statutory maximum exposure of eight years in prison, but received a sentence of only six and a half years imprisonment, which was the top of the sentencing guideline range applicable to the charged offenses. (See United States v. Hills, No. 10-142.) He had allegedly disavowed his guilt when speaking to his supervisor (NOPD Lieutenant Troy Savage) at the time of his resignation:

(c) Barrios

Officer Barrios was charged with and pled guilty to obstruction of justice, exposing him to a maximum five year sentence in exchange for his cooperation. (See United States v. Barrios, No. 10-103.) With the other officers, Barrios exited the Budget truck and was present and armed during the shooting. Yet the government did not call him as a witness at trial in its case-in-chief. According to Agent Bezak, Barrios initially volunteered that he had fired his weapon (a shotgun) which apparently struck victim James Brissett, who (according to Barrios) spun around when hit. Upon learning of the federal investigation, Barrios conferred with Mr. Glen Madison, an NOPD ballistics officer, to learn that ammunition from a shotgun blast could not be traced to a particular shotgun, whereupon he then denied he fired his weapon at all. At trial, testimony was elicited that Rakesha Barrios, the spouse of cooperating defendant Robert Barrios, initially claimed that her husband had been forced to admit guilt and to cooperate despite the fact that he was innocent.107 (See July 25, 2011 testimony of Robert Barrios, Rec. Doc. 676, at pp. 157-165). Before the jury, Robert Barrios denied such was the case, however, he was the only cooperating defendant with a plea agreement who, conspicuously, was not called as a witness by the government. (Id. at pp. 164-65, 270-71, 275-76; July 27, 2011 testimony of Robert Barrios, Rec. Doc. 683, at pp. 25-30, 48-49).

(d) Lehrmann

Just as disturbing was the DOJ's treatment of cooperating witness Jeffrey Lehrmann, who pled guilty to misprision of a felony, and received the maximum three year sentence. (See United States v. Lehrmann, No. 10-51.) On July 29, 2009, Lehrmann provided false testimony to the federal grand jury. (See id., "Factual Basis," Rec. Doc. 22, p. 12.) At that time or shortly thereafter, the government determined that Lehrmann lied, and he was brought back before the grand jury on February 3, 2010, this time as a cooperating witness/defendant, plea deal in hand.

At trial in this matter, Lehrmann testified that he participated in the creation of fictitious names (suggesting the name "Lakeisha Smith" out of thin air, when in need of a witness), falsified evidence, and other criminal acts while working side-by-side with defendant Kaufman, in an effort to justify the events occurring on the Danziger Bridge, on September 4, 2005, and participated in the filing of false charges thereafter against Lance Madison. For Lehrmann's cooperation, the government charged, and Lehrmann pled guilty, only to the grossly lesser crime of misprision of a felony, as opposed to the multiple charges defendant Kaufman faced. Further, in September 2006 (a full year after the shootings), Lehrmann was hired by DOJ with employment in federal law enforcement, as an agent with Immigrations and Customs Enforcement ("ICE"), where he worked from approximately September 2006 until June 2010,108 although he pled guilty on March 11, 2010, and had reached an agreement to cooperate and enter the plea some time before. However, within only two months of Lehrmann becoming employed by the federal government in federal law enforcement, the DOJ, in November 2006, began monitoring the State of Louisiana's Danziger Bridge prosecution. ((See Declaration of Karla Dobinski, Rec. Doc. 277-1, p. 5, ¶ 21, et seq.) "Active federal involvement in the investigation" began in September 2008 (Id., at p. 6, ¶ 31)). It was with some astonishment that the Court learned at trial that Lehrmann, having falsified official police records and attempted to frame an innocent man, matriculated into federal law enforcement, seemingly the worst place to put a man guilty of such transgressions so offensive to the administration of justice. Moreover, he stayed there on the payroll for years until three months after his guilty plea, and at least several months after the government knew of his admitted criminal acts..... and likely a much longer period since the time he was deemed a serious target of this federal investigation beginning in 2008.

(e) Haynes, Tollefson, and Gore

In addition, the Court notes at least one instance of shockingly coercive tactics employed against one potential witness (NOPD Officer Heather Gore) by FBI Special Agent William Bezak.109 (See, e.g., July 21, 2011 testimony of William Bezak, Rec. Doc. 674, at pp. 52-57.) Further, at least three persons called by Defendants as witnesses at trial refused to appear under threats from DOJ that they would be prosecuted for perjury as a result of their earlier grand jury testimony, and thus asserted their Fifth Amendment privilege so as to deprive Defendants of live witnesses. On July 27, 2011, as the defense commenced presenting its witnesses and evidence, the DOJ, through trial attorney Bernstein, advised the Court that two of the three witnesses "have both been informed that they are targets." (Sealed July 27, 2011 Transcript, p. 5, 1.24-25.) With regard to one of these witnesses, Bernstein advised that the indictment was ready to be presented to the grand jury, but was held back so as to avoid pretrial publicity. As to the third, he stood orally accused of lying to a state grand jury, and thus declined to testify for the defendants at this trial. Because of this, the Court allowed Defendants to present such testimony via reading a transcript; nonetheless, as is well-established, live testimony before a jury is always preferable and more convincing than reading from a cold transcript, as was done at this trial for these three witnesses. Still, to the best of the Court's information, as of the date of this Order some twenty-six months later, not one of these three defense witnesses has been charged with any crime whatsoever.

VII. ANALYSIS

A. Timeliness

As previously stated, the government, in its initial opposition to Defendants' motion for new trial, contends the motion is untimely because the posts of Perricone "are not newly discovered." (Rec. Doc. 1007, p. 6.) In particular, the government argues that because the articles were published well before the Rule 33 deadline for any motion not based on newly discovered evidence,110 and the comments under such articles were also posted long ago, defendants' motion is not timely. The government asserts that only the source of the posts recently became known, which, according to it, does not constitute "newly discovered evidence" for purposes of Rule 33. (Rec. Doc. 1007, p. 8.)

The Court rejects this contention, for seemingly obvious reasons. First, some of the evidence supporting the defendants' argument is clearly new, was submitted ex parte by Mr. Horn under the Court's Order, and is being made known to defense counsel for the first time in this Order. See, for example, the entire discussion regarding "Dipsos" herein. Secondly, the material fact about the Perricone posts (and any others by DOJ employees) is who made the posts, which was not revealed until many months post trial.111 Furthermore, to argue that serious violations of the Code of Federal Regulations, the DOJ's U.S. Attorneys Manual, and various other ethical rules designed to ensure the fundamental fairness and integrity of liberty depriving criminal proceedings, can be committed in anonymity and thus concealed, without consequences, based upon timeliness, merely invites more of such conduct. Similarly, the government's position112 that because the "anonymous" posts were available to defendants should have alerted them to the government's improper activities, is nonsensical, particularly since those DOJ employees who posted did so under pseudonyms chosen specifically for the very purpose of avoiding detection.

Additionally, United States v. Ugalde, 861 F.2d 802 (5th Cir.1988), a case cited by the government, is easily distinguishable. In Ugalde, the defendant observed all the grounds for his motion during the trial itself, unlike in this case, wherein the prosecutorial misconduct occurred surreptitiously and covertly, and with every intent for it to remain so, as the poster's "little secret" or "little downtime thing." Thus, the Court finds that the identity of the commentators, revealed to be DOJ attorneys, constitutes "newly discovered evidence" for purposes of Rule 33(b)(1).

Moreover, even were the Court willing to consider this evidence as not "newly discovered", the government's timeliness argument would still fail, because the government employees involved have taken great pains to conceal their activities to prevent its discovery. In assuming the sobriquets they did as user IDs, Perricone,113 Mann,114 and Dobinski,115 all realized the impropriety of posting online under their real names. None thought they would ever be discovered, and all knew they otherwise should not be conducting such prejudicial activity. Further, even after Perricone's activities had been discovered, former First AUSA Jan Mann became personally involved in purportedly protecting the government's interests by responding to the Court's inquiries on June 13, 2012, and thereafter, some of which conduct is recounted in Part One (Order and Reasons dated November 26, 2012, Rec. Doc. 1070). Significantly, despite her awareness of the Court's concerns about Perricone's postings, she did not publicly admit to her own postings until November 2012.

Likewise, it was not until May 15, 2013 — more than a year after Perricone admitted to at least some of his postings and OPR began its apparently ongoing investigation — that the Court was advised that it was Civil Rights Division trial attorney and "taint team" leader, Karla Dobinski, who posted about this case, during the course of Defendants' trial, as "Dipsos," not just any DOJ "employee." Surprisingly, the first two Horn Reports, dated January 25, 2013 and March 29, 2013, essentially gloss over the unidentified "employee from the Civil Rights Division," minimizing her involvement as posting a mere six comments, described as not being "inflammatory, critical or prejudicial," and as such "of a different category than those posted by Mr. Perricone and Ms. Mann." Thus, according to the government, Dobinski's postings "do not constitute a basis to support Defendants' Motion for New Trial." (See Horn Report dated January 25, 2013, pp. 20-21.) Though it may have been the government's hope that the Court would accept this assertion and simply "move on," such advocacy surely warranted further scrutiny.116 Indeed, having become suspicious that the Horn Reports might have been edited by a supervisor so as to coyly provide less information, rather than more, it took the undersigned two rounds of response questioning to finally obtain the important true identity of "Dipsos."117

In short, the government's argument (Rec. Doc. 1007) that "the defendants find themselves in a Catch-22 created by the Rule 33 deadlines" is but an expedient attempt to exploit and benefit from certain government counsel's own lack of transparency and deception. Thus, the Court cannot deprive, on grounds of untimeliness, the defendants an opportunity to argue this grievance simply because Perricone, Jan Mann, Dobinski, and possibly others "kept mum" long enough for the defendants to lose their right to bring before the Court such a gravely serious matter impacting their convictions. Accordingly, the Court finds the defendants' motion to be timely.

B. Due Process

In every criminal trial, a defendant is entitled to a fair trial before an impartial jury, at which time the government must prove his or her guilt, for each count charged, with admissible evidence, and beyond a reasonable doubt. This sacrosanct principle ensures that no defendant is deprived of his or her liberty as a result of an unfair, biased, or slanted proceeding skewed to achieve a conviction, as opposed to finding the truth with requisite certainty. In this instance, it is difficult to conceive, much less accept, that this time-honored constitutional procedure successfully withstood an attack of the ferocity seen here, a campaign extending back to the commencement of the DOJ's active investigation of this case in 2008, and continuing through the acceptance of related plea agreements, the indictment, and the trial itself. To conclude that such misconduct was only a little unfair, but not enough to be harmful, turns the fundamental principle of due process on its head.

The government attempts to minimize the early disclosure of the Lohman plea by stating that "the public's exposure to this information was less than one day before the information was properly to be publicized." The internal emails118 of the prosecution, however, clearly recognize its undeniable impropriety. Although the Court still does not know with certainty the identity of the source of the leak to the AP and the Times-Picayune (and both news agencies steadfastly refuse to disclose this information), Perricone's testimony sheds some light on who it may be. Further, the affidavits gathered by Mr. Horn under Lance are, of course, wholly contingent on the credibility of those who signed them.

With respect to Perricone's postings, which are the only ones discussed in the government's June 5, 2012 memorandum, the government endeavors to safely isolate the "prosecution team" (much like the attempts to contain and limit Karla Dobinski's role in the Horn Reports), stating: "Perhaps recognizing that they have no evidence to support their allegations of misconduct by members of the prosecution team, the defendants attempt to cloak the entire Department of Justice with any alleged misconduct attributed to former-AUSA Perricone." (Rec. Doc. 1007, p. 27.) The fallacy of this argument should be obvious. Of course, the "prosecution team" IS the DOJ — it IS "the government" — in this case, as it repeatedly referenced during this trial. The "prosecution team" is not some distant independent satellite of DOJ. The government further describes Perricone's postings (as Henry L. Menckenl951, or any other pseudonym) as

(Rec. Doc. 1007, pp. 28-29.) Thus, the government sought to minimize Perricone's activities, without commenting whatsoever119 on his and First AUSA Jan Mann's, and Karla Dobinski's, and perhaps others' earlier pre-trial posts, or violations of 28 C.F.R. § 50.2, Chapter 1-7.000 of the United States Attorney's Manual, Local Criminal Rule 53 of this Court, the Louisiana Rules of Professional Conduct, and Rule 8.4 of the District of Columbia Rules of Professional Conduct.120 As should be clear by now, these arguments quickly fade and wither in light of the facts learned by this Court since the government's opposition memorandum was filed over a year ago.

The government additionally asserts that the defendants' motion "lacks any substantive merit" (Rec. Doc. 1007, p. 10), claiming that no juror or potential juror was actually prejudiced by any pretrial publicity, while at the same time recognizing, as it must that the law provides exceptions to the requirement of such a showing of prejudice.121 (Rec. Doc. 1007, p. 12.) As previously discussed (See pp. 43-44), one such exception is where the integrity of the proceeding is so infected with a pattern of deliberate and especially egregious prosecutorial misconduct, such that due process may be denied by the government's failure to obey its own regulations, and/or where a miscarriage of justice occurs.

Under circumstances as extraordinary and offensive as these, jurisprudence indicates that a showing of prejudice is not necessary. Narciso, 446 F.Supp. at 306; Stone v. United States, 113 F.2d 70, 77 (6th Cir.1940). The Court finds that this case fits squarely within Footnote 9 of the U.S. Supreme Court's opinion in Brecht v. Abrahamson, supra. Moreover, as was the case in Narciso, supra, at 320, even an inquiry of the jury122 and witnesses (both those who testified and those who might have but did not) can hardly cure such a grave appearance of unfairness nor insure complete candor, even if these comments were "not actually conveyed to the jury." See also Narciso, supra, at 306, and 320; Stone, 113 F.2d at 77.

C. Prejudice

Even were a showing of actual prejudice required here, this record is sufficient in that regard as well.

a. Government Pressure

First of all, both Perricone and Dobinski viewed posting of highly-opinionated comments as a "public service." That is, the comments Perricone provided,123 and those Dobinski encouraged and praised, were viewed, at least by them, as accomplishing a larger public goal. Moreover, though the Court initially was unimpressed with the defendants' citation of FBI Agent Bezak's frank trial testimony regarding DOJ's use of the media, it now seems, at a minimum, rather unfortunate and coincidental:

(See Transcript of April 18, 2011, Testimony of FBI Agent Bezak, p. 75, 1.5-16; see also Rec. Doc. 1019-1, p. 6.) While this testimony regarding the "pressure" the government brought to bear through intentional and purposeful use of the media might not have extended, in Bezak's mind, to anonymous online commenting, it surely depicts the government's purposeful cultivation of media as a tool to ultimately obtain favorable testimony and cooperation in exchange for convictions on far lesser charges.

Everyone should recognize, as did First AUSA Jan Mann (Jan Mann November 15, 2012 Transcript, p. 138, 1.1), that a "propaganda campaign" by the USAO or the DOJ would be improper, and the USAO/DOJ proceeded to deny (and continues to deny) that such an effort existed. Prejudice, however, can occur in many forms, and can now undermine judicial proceedings without being as overt as that described in existing case law. Whether coordinated as a "propaganda campaign," or simply the culmination of independent, but nonetheless quite improper, posting activities by government employees, a prejudicial, poisonous atmosphere can be created sufficient to impair the fundamental constitutional right to a fair trial by an impartial jury. In this case, the Court has already learned of more online posters employed, or encouraged by, USAO and DOJ attorneys, all of whom rain vociferous condemnation on the defendants, their employer NOPD, their attorneys, their defenses, their witnesses, their evidence, and the testimony of the one defendant who took the stand. Through the cited provision of the Code of Federal Regulations, as well as the U.S. Attorneys Manual, the government clearly recognizes that the use of the media, in ways that might very well prejudice defendants, and create an overriding tenor of guilt in the community long before trial, must be avoided. The known postings of Perricone, in particular, clearly establish this general criteria of creating such prejudice.

b. Influence on Jurors

Though the Court has found that, under these egregious circumstances, prejudice need not be shown, the undersigned reviewed the pre-trial questionnaires filled out by the twelve jurors who deliberated in this case.124 In the months before trial in 2011, recognizing that Nola.com was a rather popular source of local news and information, the Court, by agreement of all counsel, expressly and separately included a written question regarding it (Question 87c) on the questionnaire. Specifically, when asked whether they visited the Nola.com website, seven of the twelve responded in the affirmative; three of those seven also indicated that they did not receive a hard copy of a newspaper. The Court then not knowing and never suspecting posting activity by DOJ attorneys and employees, AUSA's, or any other counsel, no further questions were asked of those who answered "Yes." Had counsel and the Court been aware of such improper activity, jurors surely would have been subject to further inquisitive voir dire, particularly about Perricone's long-time campaign of negative NOPD posts, including those discussing the defendants and the defense of this case. But, because the posting of prejudicial comments was kept a "secret," neither trial counsel nor the Court had the inclination or need to explore it further, and thus, in hindsight, the voir dire process, given these unique circumstances, was flawed and insufficient.

Also pertinent are Questions 49, 54, 77(f) and 77(h), which specifically relate to impressions of NOPD.125 Although the Court did not discern a material difference between the responses of the seven jurors who looked at the Nola.com website, versus those who did not, on these particularly relevant questions, there was one noticeable disparity of arguable significance. That is, in responding to Question 77(h) ("NOPD officers tend to be honest."), the seven Nola.com readers responded [on a scale of 1 ("disagree strongly") to 7 ("agree strongly")] with four 4's, one 2, and one 6, for an average of 4.126 The jurors who indicated that they do not look at Nola.com responded with two 6's, one 2, one 5, and one 7, for an average of 5.2. Though the many answers to the questionnaires could be interpreted in different ways, these responses to this particular question seem to demonstrate that those jurors who did not view the Nola.com website tended to view NOPD officers as being more honest than the seven who did view the website; to state it conversely, those who read Nola.com were more likely to view NOPD officers as dishonest.

Of course, there are undoubtedly many reasons why each juror thought the way he/she did, and on which he/she based each opinion. More importantly, were an evidentiary hearing held on this issue, it is highly unlikely that any juror, questioned years later, could recall, with any reliability or certainty, which news articles he/she viewed on Nola.com, and which comments he/she read, since Perricone started posting in late 2007/early 2008. Moreover, even today, neither the Court, the government, nor defense counsel know the full extent of posts by AUSA's, other DOJ employees, and/or other government employees to this day, since the previous Perricone and Jan Mann user IDs cannot be recalled or recovered, the DOJ has decided not to pursue a subpoena for the ten other user IDs sought earlier this year, and there may well be others still unknown who posted comments. (See Jan Mann November 15, 2012 Transcript, p. 138, 1.23-24: "There's going to be other commenters in the office.")

Finally, it might not be discernable whether a juror's opinion about NOPD officers' honesty is a result of conversation/influence of other family members, friends, and/or coworkers who were unknowingly impacted by the surreptitious "public service" of Nola.com posting by government personnel. Thus, the contamination of the illicit prejudicial comments over the preceding years is ineradicable, like a bell which cannot be unrung. Suffice it to say, however, the only dependable answer in the questionnaire, not subject to interpretation and argument based upon analysis of trends, or later vague recollections, is that seven jurors indicated before trial that they visited and viewed the Nola.com website with varying frequencies. And, of course, none of those jurors were immune to the extensive pre-trial posting activity of Perricone (and perhaps others) in the years leading up to trial. Rather, during this multi-week trial, the jury was not sequestered, and jurors resumed normal activities on the days they were not in trial. Even if they followed the Court's instructions precisely, they still would have been exposed to the general Zeitgeist of the community, which was being purposefully influenced by Perricone and, later during trial, Dobinski. Under these circumstances, the Court cannot afford the government a presumption of innocuous benignity.

c. Potential Influence on Witnesses

In addition, as the Court has already pointed out, Officer Hills (and perhaps others, like Officer Barrios) denied his guilt, but took "the best deal I could get. I have to take it." On the flipside, attorneys for three defense-subpoenaed witnesses reported to the Court during the trial that their respective clients declined to testify, on Constitutional grounds, because they had been threatened with federal or state prosecution based upon prior conduct. (See Part One, Rec. Doc. 1070, p. 45, fn. 35.) Prosecutor Bernstein herself advised the Court that two of these three witnesses "have been informed that they are targets", and that DOJ was "ready to present the indictment and the reason we held back was specifically in deference to this Court's Order and to be sure not to generate publicity." (Sealed Transcript of Bench Conference, July 27, 2011, p. 6.) Then USA Letten similarly stated: "There are legitimate pending matters against them that we could, in fact, press." (Sealed Transcript of Bench Conference, July 27, 2011, p. 6.) With regard to the third witness who had faced state charges, moreover, USA Letten reportedly advised Orleans Parish District Attorney Leon Cannizaro that, "we have no intention of immunizing these individuals ..." (Sealed Transcript of Bench Conference, July 27, 2011, p. 5.) Though transcripts of these witnesses' grand jury testimony were read to the jury by a paralegal or law clerk, the defendants were deprived of live testimony subject to cross examination, which is always significantly better from the jury's perspective, though the Court makes no evaluation (and simply cannot make such an evaluation) of whether such testimony would have ultimately impacted the verdict herein.

D. Evidentiary Hearing

The defendants originally requested an evidentiary hearing. (Rec. Doc. 963-1, pp. 18-20.) In cases alleging prosecutorial misconduct, courts should hold an evidentiary hearing when the motion, as is this one, is based on evidence outside the trial record. Richardson v. United States, 360 F.2d 366, 369 (5th Cir.1966) (remanding for the district court to conduct a hearing on potential witness misconduct); United States v. Chagra, 735 F.2d 870, 874 (5th Cir.1984) ("the alleged governmental misconduct could not be shown except by an evidentiary hearing, because it was (as alleged) extraneous to and outside of the trial record.") In this case, however, the Court believes it has obtained sufficient information from the government via the Horn Reports to meet the threshold for deciding the defendants' motion, without the need to pursue an evidentiary hearing.

Initially skeptical about the need for such a hearing, the Court ordered further investigation and information from the government, and also ordered the defendants to submit ex parte a specific description and plan for the evidentiary hearing they sought. (Rec. Doc. 1070, pp. 6-7.) In the intervening 15 months between that Order (June 13, 2012) and today, the Court has seen the initial suspicions of government misconduct mushroom into more than it could possibly have imagined in June 2012. Indeed, developments in the interim seem to show this misconduct has metastasized.

The undisputed facts as set forth in Part One and in this Order are sufficient for the Court to rule as it does today, although they may just scratch the surface. In fact, a reader of both Orders will note quite conspicuously that pivotal questions abound and remain unanswered.127 In addition, one can only wonder what other unanticipated revelations might be in store along the lines of those suggested herein. Secrets such as these are not given up easily, and have not been. For instance, the shock of learning of "taint team" leader Dobinski's posting activities leads the undersigned think that nothing would surprise the Court at this point. In Part One, the Court said it would follow the evidence, and it has done so sufficiently to arrive at its ruling.

Moreover, the only practical way an evidentiary hearing can be held in this case, given the prior lack of complete transparency and slow drip of information, would be to schedule it in sessions, much the way a grand jury operates. In other words, each day of testimony and document return and review would lead to further inquiry, resulting in another evidentiary session as follow up to that which was learned in the one before. Proceeding seriatim, the Court would likely ferret out much more information regarding the government's activities, both anonymous and not, at great cost to all involved, with no small amount of collateral damage. Based on the record as it exists today, the Court believes this motion can be disposed of without the need to further test the veracity and reliability of many more prosecutors and federal law enforcement personnel. Furthermore, given additional information within the Court's knowledge from the Horn Reports but not reported herein, it is highly unlikely an evidentiary hearing would improve the government's position, or absolve it of its admitted transgressions. Considering the already-known and established facts, the Court has already been led to a dark benthic place of prosecutorial misconduct.

E. Disposition

The Court expects that all criminal proceedings will be conducted by all counsel properly, professionally, ethically, and with dignity. In that regard, the Court is charged with "safeguarding the integrity of the jury trial." (See Narciso, 446 F.Supp. at 304 (quoting United States v. Gainey, 380 U.S. 63, 68, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965)). Thus, the Court's primary concern, in light of all of the government's activities set forth herein, is whether this verdict can be honored as a fair product of our criminal justice system. The Court finds that it cannot. The Court determines that, in this instance, prejudice need not be shown; and even so, sufficient prejudice exists. The critical mass — the "totality of the circumstances" or "cumulative effect" — of these actions is more than this Court can bear, and warrants the relief granted herein. At the conclusion of Part One (Rec. Doc. 1070), the Court indicated that the possibility of prosecutorial misconduct "ripening into grounds for relief remains somewhat distant." (Rec. Doc. 1070, p. 48.) As set forth herein, that distance has closed, and the government's misconduct has surpassed the Court's tolerance under the relevant law and jurisprudence. While it may be difficult to pinpoint exactly which government act is the proverbial "straw that broke the camel's back," the undersigned is certain that it is indeed surely broken with the revelation of Dobinski's posting activity, given the "public service" encouraged of specific posters thirsting for convictions.

The Court initially posed the question of whether the government could do indirectly, with anonymity, that which it is strictly prohibited from doing under all other circumstances. One need only review the clear unequivocal provisions of 28 C.F.R. § 50.2, 28 C.F.R. § 1626, the DOJ U.S. Attorneys Manual, Local Criminal Rule 53 of this Court, and the various Rules of Professional Responsibility, to realize that the government's conduct in this case cannot be considered merely "my little secret" "to relieve stress,"128 or "my little downtime thing," "no big deal."129 A review of the entire body of information provided to the Court since the subject motion has been filed leaves one with the distinct impression that an online "carnival atmosphere"130 existed, wherein justice was distorted and perverted in ways that are directly and strictly prohibited, without exception. Nor was such misconduct confined to a single low-level government employee who committed such acts infrequently and over a short period of time; to the contrary, they were committed by those with significant authority who act in the name of "the United States of America" when they enter court and at all other times, and who have now left a fractured public trust.

The government, through DOJ, is instilled by the United States Constitution and statutory authority with great investigatory and prosecutorial powers: the power to initiate investigations, empanel grand juries, call and subpoena witnesses and the production of documents before grand juries. The government likewise is equipped with a vast network of law enforcement officers, including federal agencies such as the FBI, ATF, DEA and other various arms of agency law enforcement, as well as cooperating state and local law enforcement authorities. Importantly, the DOJ is empowered to determine who gets prosecuted, and for what crimes, and has discretion in crafting an indictment to be presented before a grand jury, including the various counts featured in such indictment, so as to establish mandatory statutory minimum and maximum sentences for each defendant, and to select the strategic timing for handing down such an indictment. The same is true relative to bills of information issued by the government. Much to the Court's consternation, however, this apparently is not enough to some, as evidenced here. Try as it might, the Court cannot fathom why at least three (four, counting government agency employee "A") highly intelligent, experienced and respected officials of DOJ thought posting comments publicly online was a good idea, other than to have their corrosive opinions on public display for all to see, read, and accept as correct.

The publication by DOJ employees of inflammatory invectives, accusatory screeds, and vitriolic condemnations, both directly and by the express encouragement of others to do the same, should confound and alarm any reasonable observer of the criminal justice process. Indeed, the very purpose of 28 C.F.R. § 50.2 is to avoid "the particular danger of prejudice resulting from statements in the period approaching and during trial ...", and DOJ personnel are ordered to "strenuously avoid furnishing any statement or information during that period which could reasonably be expected to be disseminated by means of public communication, if such a statement or information may reasonably be expected to influence the outcome of a pending or future trial." (See 28 C.F.R. § 50.2(b)(2)(5); U.S. Attorney Manual, § 1-7.500.) Clearly, the campaign of Senior Litigation Counsel AUSA Perricone, along with the online aiding and abetting of Washington, D.C. DOJ attorney Dobinski, violates this regulation and the other rules set forth herein.

In its opposition memorandum, the government seems to take solace in the fact that this conduct was conducted anonymously such that these "remarkably low profile musings of an unrecognizable citizen (Perricone)" were "not known or suspected by anyone associated with the case (including the prosecution team, the Court, the jurors, or the defense attorneys) to be a government employee let alone a supervisor of the trial team." (Government Memorandum in Opposition, Rec. Doc. 1007, p. 28.) In the Court's view, however, the fact that the government's actions were conducted in anonymity makes it all the more egregious, and forces the Court, the defendants, and the public into an indecent game of "catch-me-if-you-can." This warps the very meaning of 28 C.F.R. § 50.2 and the other rules and regulations cited herein, and casts them and the protections of the criminal justice system to the side of the road to securing convictions. This Court is unwilling to rummage through debris and "graffiti"131 in search of unexpected unethical conduct. The government's argument, when reduced to its most fundamental sentiment, is that it can "pull a fast one" on the Court, the defendants, defense counsel, the jury, and the public, and relief from such transgressions is now barred as untimely under Rule 33. Nowhere in the law is the Court condemned to suffer a "fool me once" fate, deprived of the ability of granting relief, and taking no action other than "gnashing of judicial teeth."132

The Court remains troubled that, despite the best efforts of Mr. Horn and Ms. Alexander, much is still not known about the nature and extent of government activities similar to those reflected herein. Although a battery of preprinted affidavits were signed, the Court has, unfortunately, already seen the government omit pertinent facts, conceal material information, threaten but not charge at least three witnesses the defense identified (resulting in their failure to appear at trial), present cooperating witnesses testifying to their own separate but dissonant "truths," or "interpretations," and attempt to mitigate internet conduct that any reasonably responsible prosecutor would know is forbidden.

On July 12, 2010, the indictment in this case was announced with much fanfare, a major press conference presided over by U.S. Attorney General Eric Holder, and widespread media attention. On that occasion, a DOJ representative said that the indictments "are a reminder that the Constitution and the rule of law do not take a holiday — even after a hurricane." While quite true in every respect, the Court must remind the DOJ that the Code of Federal Regulations, and various Rules of Professional Responsibility, and ethics likewise do not take a holiday — even in a high — stakes criminal prosecution, and even in the anonymity of cyberspace. While fully appreciating the horrific events of September 4, 2005, and those who tragically suffered as a result, the Court simply cannot allow the integrity of the justice system to become a casualty in a mere prosecutorial game of qualsiasi mezzo.

Some may consider the undersigned's view of the cited rules and regulations as atavistic; but courts can ignore this online "secret" social media misconduct at their own peril. Indeed the time may soon come when, some day, some court may overlook, minimize, accept, or deem such prosecutorial misconduct harmless "fun."133 Today is not that day, and Section N of the United States District Court for the Eastern District of Louisiana is not that court.

The public must have absolute trust and confidence in this process. Re-trying this case is a very small price to pay in order to protect the validity of the verdict in this case, the institutional integrity of this Court, and the criminal justice system as a whole. In an abundance of caution, the motion must be granted.

VIII. CONCLUSION

In this Order and in Part One (Rec. Doc. 1070), the Court has cited only some of the testimony upon which it relies in ruling on the defendants' motion. This testimony and other recited information illustrates the diseased root that unfortunately casts an ineradicable taint on these convictions. The government's actions, and initial lack of candor and credibility thereafter, is like scar tissue that will long evidence infidelity to the principles of ethics, professionalism, and basic fairness and common sense necessary to every criminal prosecution, wherever it should occur in this country. In fact, many of the charges included by the DOJ in the indictment filed against these defendants are designed to serve the purpose of maintaining honesty, integrity, professionalism, and the protection of the public from those who abuse their authority in the criminal justice system. Those purposes likewise must be served in the prosecution of those accused of violating them.

Though the Court would otherwise be inclined to have an evidentiary hearing of the type described herein, the already-established facts, in the opinion of the undersigned, establish sufficient grounds to grant the defendants' instant motion for new trial. Given the time, effort and energy invested by the Court in this matter from the beginning, this is indeed a bitter pill to swallow. With full realization of the implications and gravity of granting the defendants' motion, the Court does not take such action lightly, but only after deep and intense consideration of the admitted facts, applicable law, and the consequences of doing otherwise. For the reasons extensively stated in Part One (Rec. Doc. 1070) and in this Order, there can be no doubt that the highly unusual, extensive, and truly bizarre actions of government counsel have placed the Court and all counsel, as well as their clients and the victims, in the unacceptably awkward position of maintaining multiple convictions and de facto life sentences in the face of such actions. No comfort level for this can be reached. Accordingly, for these reasons,

IT IS ORDERED, ADJUDGED AND DECREED that the Motion for New Trial filed herein on behalf of defendant Arthur Kaufman (Rec. Doc. 963), and joined in by defendants Kenneth Bowen, Robert Gisevius, Robert Faulcon and Anthony Villavaso, be and is hereby GRANTED.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that counsel are to confer within the next thirty (30) days to determine scheduling needs, and then request the Court to set a status conference once this has been accomplished. The Court will promptly schedule such a status conference, and will post haste select a trial date to be docketed on the calendar of this Court.