United States v. Gregory McRae ( 2015 )

Case: 14-30995 Document: 00513132071 Page: 1 Date Filed: 07/28/2015
REVISED JULY 28, 2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-30995
FILED
July 28, 2015
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
GREGORY McRAE,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
Before HIGGINBOTHAM, DENNIS, and HAYNES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
In the aftermath of Hurricane Katrina, Henry Glover, a civilian, died
after an encounter with a New Orleans police officer that left his severely
wounded body in a car owned by William Tanner. After Glover died, another
officer, Gregory McRae, with the corpse in the car, set it afire. McRae was
convicted of four counts, among them violating 18 U.S.C. § 242 and 18 U.S.C §
1519. We affirmed three of the four convictions, including his conviction under
section 1519 and remanded for resentencing. On remand, McRae moved for a
new trial on the basis of newly discovered evidence. The district court denied
the motion. McRae appeals again.
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No. 14-30995
After the district court ruled, the Supreme Court announced Yates v.
United States. It is undisputed that by its measure, McRae’s charged conduct
is not proscribed by 18 U.S.C. § 1519. 1 We must and do vacate his conviction
on this count and remand for resentencing. We affirm the district court’s
denial of McRae’s motion for a new trial.
I.
The facts of this case are set out in our first opinion from which we here
summarize.
A.
On September 2, 2005, several days after Hurricane Katrina made
landfall, New Orleans Police Department (“NOPD”) officer David Warren
reported for duty. 2 During his patrol, Warren noticed a civilian, Henry Glover,
riding a bicycle near an abandoned shopping center. The full nature of their
interaction remains a subject of some uncertainty, however, “[a]s to the events
that followed, this much is undisputed: Warren shot at Glover with his
personal rifle.” 3 Glover collapsed and was transported by William Tanner in
his car to the nearby Habans Elementary School, where the NOPD had
established a temporary base, to obtain medical care for Glover. 4 Tanner,
joined by Glover’s brother, Edward King, and another man, arrived at Habans
with Glover’s body in the backseat of the car. The three were detained by
NOPD officers, while “[t]he fatally wounded Glover remained silently in the
backseat of Tanner’s car.” 5
1 135 S. Ct. 1074, 1088 n.8 (2015).
2 See United States v. McRae, 702 F.3d 806, 811-12 (5th Cir. 2012).
3 Id. at 813. Warren testified that he fired a warning shot, and “did not aim anywhere
near the man.” Id. at 812.
4 Id. at 813.
5 Id. at 817.
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During this time, Officer McRae was working in a Special Operations
Division stationed at Habans. After Tanner and the other men were detained,
“Officer McRae moved Tanner’s car to the schoolyard. McRae removed several
items from the car, including a gasoline jug, jumper cables, and tools. Later,
McRae moved Tanner’s car to another area of the school’s property. Glover
remained in the car, which was to become his coffin.” 6 Shortly after, NOPD
Captain Jeffrey Winn, who was responsible for McRae’s unit, arrived at the
scene and ordered McRae and another officer, Dwayne Scheuermann, “to move
Tanner’s car, with Glover’s body, to a more secure location away from the
school.” 7
McRae and Scheuermann left the school in different cars. McRae
drove Tanner's car and Scheuermann followed behind in a gray
pick-up. McRae arrived at the levee shortly before Scheuermann.
He drove Tanner's car over the levee and down a ramp, into an
area of trees. He got out of the car, lit a road flare, tossed the flare
into the car, closed the driver's side door, and walked away. As
McRae walked back up the levee to join Scheuermann in the gray
pick-up, he looked back and noticed that the flare was dying out.
He walked back closer to the car, drew a pistol, and fired one shot
into the car's rear glass. The shot ventilated the car. The car, with
Glover's body, began to rapidly burn. The job was complete. McRae
retreated to the gray pick-up.
When McRae got into the gray pick-up, Scheuermann asked him
why he had set Tanner's car on fire. McRae responded that he
“wasn't going to let it rot,” referring to Glover's body. At trial,
McRae testified that he decided to burn Tanner's car and Glover's
body before he left Habans School, and that he made that decision
on his own without consulting anyone. He testified that he had
seen other dead bodies rotting in the chaotic aftermath of
Hurricane Katrina, and that he didn't want Glover's body to suffer
the same fate.
6 McRae, 702 F.3d at 817-18.
7 Id. at 818.
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Two weeks later, Glover's charred remains were recovered and
taken to a temporary morgue. A coroner performed an autopsy on
the remains in late October 2005, but they were not identified as
those of Glover until April 2006. Glover's family was then able to
bury him. 8
B.
In 2010, McRae was indicted on five counts. The first three claimed
violations of 18 U.S.C. § 242, a federal civil rights statute: that McRae (1)
deprived Tanner of the right to be free from an unreasonable seizure; (2)
deprived Tanner and King of their civil rights by beating them; (3) denied
Glover’s descendants and survivors the right to access courts to seek legal
redress for a harm. McRae was also charged with (4) obstructing a federal
investigation, in violation of 18 U.S.C. § 1519, and (5) using fire to commit a
felony, in violation of 18 U.S.C. § 844(h). 9
As trial preparation began, McRae was seen on a weekly basis by Dr.
William B. Janzen, Ph.D, a clinical psychologist. Dr. Janzen, in a report
written after McRae’s trial had finished, reported that McRae “is clearly
evidencing symptoms of a posttraumatic stress disorder [(“PTSD”)] as a result
of his experiences during and after Hurricane Katrina.” It is unclear from the
record whether or when McRae knew about his diagnosis, though there is a
treatment note, dated September 23, 2010, and signed by McRae, where Dr.
Janzen wrote that McRae had “delayed PTSD.”
C.
The jury trial began in November 2010. It was prominently covered in
the local media and drew the attention of internet commentators. One of those
was later discovered to be Sal Perricone, an Assistant United States Attorney
in the Eastern District of Louisiana. Although he was not a member of the
8 Id.
9 Id. at 811.
4
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McRae trial team, Perricone made numerous anonymous statements, mainly
in the online comments section of various NOLA.com articles about the trial. 10
For example, in an article entitled “NOPD officer says she squelched her
personal conclusions about the death of Henry Glover,” Perricone, using the
pseudonym “legacyusa,” wrote:
Let me see if I understand this: The cops, through their attorneys,
admitted that they shot Glover and then burned the body in a car
that belonged to another man, who was not arrested for anything
. . . RIGHT???
Guilty!! 11
Perricone also criticized the performance of the prosecution team, again via
online comments that followed NOLA.com articles. 12 None of these postings
identified Perricone by name or employer. 13
McRae was acquitted on the charge that he beat King and Tanner, but
was convicted of all other counts. 14 “The district court imposed concurrent
sentences of 87 months for each of the convictions under 18 U.S.C. §§ 242 and
1519, and a consecutive 120–month sentence for the conviction under 18 U.S.C.
§ 844(h), for a total of 207 months of imprisonment.” 15
D.
McRae appealed his conviction. “We [held] that the evidence is
insufficient to support McRae’s conviction for denying Glover’s descendants
and survivors the right of access to courts” and vacated his conviction on that
10 NOLA.com is the website of the New Orleans Times-Picayune.
11 This posting was one of thirty-three separate comments on this article, most by
other anonymous commentators.
12 For example: “My point is simple: the ego of the prosecutor over rode his judgment.”
13 The postings are discussed in more detail in United States v. Bowen, 969 F. Supp.
2d 546, 589-603 (E.D. La. 2013).
14 United States v. McRae, 702 F.3d 806, 818 (5th Cir. 2012).
15 Id. at 811.
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count. 16 We affirmed his conviction as to the other three counts. 17 “[B]ecause
we [were] unsure of how the district court confected the various sentences as
part of the whole,” we vacated his entire sentence and remanded for
resentencing. 18
E.
On remand, McRae moved for a new trial. He pointed to two types of
newly discovered evidence that would justify new proceedings. First, he
argued that there was new evidence that he was suffering from early stage
PTSD, which vitiated the mens rea required to sustain his convictions. Second,
he posited that Perricone’s postings on NOLA.com constituted “an institutional
failure that prejudiced [him].”
The district court denied the motion. 19 On resentencing, the court
imposed two sentences of 87 months, one for the conviction under 18 U.S.C. §
242 and one for the conviction under 18 U.S.C. § 1519, both to run concurrently,
and a third sentence of 120 months for the conviction under 18 U.S.C. § 844(h),
which would run consecutively to the first two counts. The total sentence was
207 months in prison.
McRae timely appeals.
II.
A.
McRae was convicted of obstructing a federal investigation in violation
of 18 U.S.C. § 1519 by burning Henry Glover’s body and William Tanner’s car.
Both sides agree this conviction must be vacated. As do we.
16 Id.
17 Id. See also id. at 832-40.
18 Id. at 843.
19 See United States v. McRae, No. 10-CR-154, 2014 WL 2468559 (E.D. La. June 2,
2014).
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Our analysis is controlled by the Supreme Court’s recent decision in
Yates v. United States. 20 There, the Court considered the scope of section 1519,
which provides:
Whoever knowingly alters, destroys, mutilates, conceals, covers
up, falsifies, or makes a false entry in any record, document, or
tangible object with the intent to impede, obstruct, or influence the
investigation or proper administration of any matter within the
jurisdiction of any department or agency of the United States or
any case filed under title 11, or in relation to or contemplation of
any such matter or case, shall be fined under this title, imprisoned
not more than 20 years, or both. 21
At issue there, as here, was the meaning of the term “tangible object.” A four-
justice plurality of the Court held “that a ‘tangible object’ within [section]
1519’s compass is one used to record or preserve information.” 22 Justice Alito,
concurring in the judgment, did not formally adopt this definition, but
concluded that the term “‘tangible object’ should mean something similar to
records or documents.” 23
McRae was convicted of violating section 1519 by “burn[ing] a 2001
Chevrolet Malibu, containing the body of Henry Glover and other evidence,
with the intent to impede, obstruct, and influence the investigation of the
September 2, 2005, shooting of Henry Glover by a New Orleans Police
Department Officer.” Neither a car nor a corpse are “used to record or
preserve information” or are “similar to records or documents.” 24 By light of
Yates, McRae’s actions do not violate section 1519. Indeed, were there any
20 135 S. Ct. 1074 (2015).
21 18 U.S.C. § 1519.
22 Yates, 135 S. Ct. at 1088-89 (plurality op.).
23 Id. at 1090 (Alito, J., concurring in the judgment).
24 Id. at 1088-89 (plurality op.); id. at 1090 (Alito, J., concurring in the judgment).
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doubt, the Yates plurality calls out our decision in McRae, by name, as a case
involving conduct that no longer falls within the ambit of section 1519. 25
Both McRae and the United States acknowledge that the conviction and
sentence imposed under section 1519 must be vacated. As McRae correctly
recognizes, however, because he did not object to the scope of section 1519 in
the district court, the four-step plain error test applies.
First, there must be an error or defect—some sort of deviation from
a legal rule—that has not been intentionally relinquished or
abandoned, i.e., affirmatively waived, by the appellant. Second,
the legal error must be clear or obvious, rather than subject to
reasonable dispute. Third, the error must have affected the
appellant's substantial rights, which in the ordinary case means
he must demonstrate that it affected the outcome of the district
court proceedings. Fourth and finally, if the above three prongs are
satisfied, the court of appeals has the discretion to remedy the
error—discretion which ought to be exercised only if the error
seriously affects the fairness, integrity or public reputation of
judicial proceedings. Meeting all four prongs is difficult, as it
should be. 26
We measure whether the law is clear by looking at the legal landscape as it
stands at the time of the appeal. 27 The first two factors are straightforward –
after Yates, it is beyond dispute that destroying a car and corpse is not
criminalized by section 1519. Third, McRae’s conviction “affected [his] . . .
substantial rights” by increasing his punishment. 28 Finally, because McRae
25 See id. at 1088 n.8.
26 Puckett v. United States, 556 U.S. 129, 135 (2009) (internal quotation marks,
brackets, and citations omitted).
27 United States v. Escalante-Reyes, 689 F.3d 415, 418 (5th Cir. 2012) (en banc).
28 Because section 1519 is an offense of obstruction of justice, the district court applied
an enhancement pursuant to U.S.S.G. § 2J1.2. Even if that enhancement had no effect on
his sentence, the court imposed a mandatory special assessment of $100 on McRae for his
section 1519 conviction. See 18 U.S.C. § 3013(a)(2)(A). This assessment is enough to satisfy
the third plain error prong. See United States v. Ogba, 526 F.3d 214, 237 (5th Cir. 2008)
(holding that a change in sentence that would alter the special assessment affected the
defendant’s substantial rights).
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was convicted of conduct that simply does not violate the statute as currently
interpreted, we conclude that it affects the “fairness, integrity, or public
reputation” of these proceedings, and exercise our discretion to vacate his
conviction for this count. 29
Because of Yates, this appeal – much of which focused either explicitly
or implicitly on McRae’s section 1519 conviction – has been significantly
narrowed.
B.
Next, we turn to the district court’s denial of McRae’s motion for a new
trial, bearing in mind that his arguments are now only relevant for his section
242 and section 848(h) convictions.
Federal Rule of Criminal Procedure 33 allows the district court to “vacate
any judgment and grant a new trial if the interest of justice so requires.” 30 We
review the court’s decision to grant or deny a motion for a new trial for abuse
of discretion. 31 “[M]otions for new trial are disfavored and must be reviewed
with great caution.” 32 When, as here, the defendant moves for a new trial
based on newly discovered evidence, he must prove each of five prerequisites:
The defendant must prove that (1) the evidence is newly discovered
and was unknown to the defendant at the time of trial; (2) the
failure to detect the evidence was not due to a lack of diligence by
the defendant; (3) the evidence is not merely cumulative or
impeaching; (4) the evidence is material; and (5) the evidence if
introduced at a new trial would probably produce an acquittal. 33
29 See United States v. Olano, 507 U.S. 725, 736 (1993) (“The court of appeals should
no doubt correct a plain forfeited error that causes the conviction or sentencing of an actually
innocent defendant.”).
30 Fed. R. Crim. P. 33(a).
31 United States v. Wall, 389 F.3d 457, 465 (5th Cir. 2004).
32 United States v. Piazza, 647 F.3d 559, 565 (5th Cir. 2011).
33 Wall, 389 F.3d at 467. “The defendant is required to prove each element in order to
prevail.” United States v. Anderson, 755 F.3d 782, 800 (5th Cir. 2014).
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1.
McRae’s first ground for a new trial is that he has recently discovered
“that the clinical psychologist to whom Pretrial Services referred him as a
condition of pretrial release has diagnosed him with Post-Traumatic Stress
Disorder.” This evidence, he argues, would have showed that he “burned
Glover’s body . . . because of his impaired mental state,” not to “cover-up a
police shooting.” While McRae’s mental state was central to his section 1519
charge, requiring mens rea to obstruct an investigation, 34 McRae’s challenge to
this conviction is now moot.
McRae was convicted of violating 18 U.S.C. § 242 by “unreasonably
seiz[ing] [Turner’s] vehicle (a 2001 Chevrolet Malibu) by burning it without
legal justification, thereby willfully depriving [Turner] of the right, secured
and protected by the Constitution and laws of the United States, to be free from
an unreasonable seizure by law enforcement officers.” 35 Section 242 has a
“willful” mental state requirement, which means that the prohibited act must
have been done “voluntarily and intentionally and with the specific intent to
do something the law forbids.” 36 However, McRae does not argue that evidence
of his PTSD diagnosis would have any relevance to his section 242 conviction. 37
34 See, e.g., United States v. McRae, 702 F.3d 806, 835 (5th Cir. 2012) (“[Section 1519]
prohibits knowingly destroying evidence ‘with the intent to impede, obstruct, or influence the
investigation or proper administration of any matter within the jurisdiction of any
department or agency of the United States.’”) (quoting 18 U.S.C. § 1519).
35 Rawle 268.
36 United States v. Sipe, 388 F.3d 471, 479 (5th Cir. 2004); see also United States v.
Garza, 754 F.2d 1202, 1210 (5th Cir. 1985) (recognizing that the Supreme Court has taught
“that the term willfully in 18 U.S.C. § 242 implies conscious purpose to do wrong and intent
to deprive another of a right guaranteed by the Constitution, federal statutes, or decisional
law”) (citing Screws v. United States, 325 U.S. 91 (1945)).
37 McRae mentions, in a single sentence of his brief, that “[t]o convict, however, the
government had to prove ‘specific intent to do something the law forbids’ for the civil rights
charges.” The rest of the discussion focuses on whether the new evidence would show that
he did not burn Glover’s body to cover-up a police shooting. At the district court, McRae
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Because an argument not raised at the district court or in the appellant’s
opening brief is waived, 38 we need not reach this issue.
Regardless, there is no credible argument that the district court abused
its discretion in concluding that the new evidence would not “probably produce
an acquittal.” McRae offers neither evidence nor legal theory to explain how a
post-incident diagnosis of PTSD would have negated his mental state on
September 2, 2005 for the purposes of his section 242 conviction. Rather, his
trial testimony indicates the opposite; McRae testified that on that date, he
unequivocally intended to burn Turner’s car: 39
Prosecutor: You had no intention, when you left that day, of
bringing this car or this body back to Habans School?
McRae: I had made a decision before I left Habans that I was going
to burn the body in the vehicle.
Prosecutor: You had made that decision before you left Habans
School?
McRae: Yes, sir.
Prosecutor: That you were going to burn this car and this body?
McRae: That’s correct.
Prosecutor: So before you even left Habans School you had a plan
in your mind?
McRae: That’s correct.
Prosecutor: To take these flares and light this car on fire?
focused only on the section 1519 mental state argument. There, he argued that he “is entitled
to a new trial at which his seemingly brutal, callous and bizarre behavior cannot be urged to
have been the first step in a cover-up conspiracy, but rather the early stage of a mental
disorder from which he suffers to this day, one recognized by Dr. Janzen, but not made known
to defendant until several months post verdict.”
38 See Cent. Sw. Tex. Dev., L.L.C. v. JPMorgan Chase Bank, Nat’l Ass’n, 780 F.3d 296,
300 (5th Cir. 2015) (arguments not raised before district court are waived); Flex Frac
Logistics, L.L.C. v. N.L.R.B., 746 F.3d 205, 208 (5th Cir. 2014) (arguments not raised in
opening brief are waived).
39 In the first appeal, McRae argued that burning Turner’s car could not constitute a
seizure. We rejected that argument on plain error review. See United States v. McRae, 702
F.3d 806, 833 (5th Cir. 2012).
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McRae: Yes, sir.
Prosecutor: And just so that we are clear, when the car went up on
fire, that wasn’t a mistake?
McRae: No, sir. That was definitely not a mistake.
Prosecutor: That was something intentional?
McRae: Yes.
A few minutes later, McRae confirmed that he knew the vehicle did not belong
to him and knew that its destruction was legally prohibited:
Prosecutor: And it’s your statement that you planned to just go and
burn the car from, I believe you said, the moment before you
left. That was your plan?
McRae: Yes.
Prosecutor: To take this functioning 2001 Chevrolet Malibu and
light it on fire?
McRae: Sir, that car was meaningless to me. That car was nothing
to me.
Prosecutor: Well, I realize that. You burned the car, correct?
McRae: That’s correct.
Prosecutor: Notwithstanding the fact that [New Orleans] had
shortages of vehicles, correct?
McRae: Right.
Prosecutor: Notwithstanding the fact that this vehicle belonged to
somebody, correct?
McRae: That’s correct.
Prosecutor: Because –
McRae: I didn’t know who it belonged to; that’s correct.
Prosecutor: Because you’re well aware, as a police officer, the
Fourth Amendment of the Constitution means you can’t just
take people’s stuff, right?
McRae: During Katrina, we did not know who the vehicles
belonged to. We were driving in stolen vehicles that we
didn’t steal; vehicles that you would basically pull up on the
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corner, they would get out and run. We would not leave a
vehicle like that.
Prosecutor: My question is: You understand the Constitution
prohibits police officers from just taking people’s stuff?
Would you agree?
McRae: In standard times and standard days, yes, sir, that is
correct.
Prosecutor: Is it you statement that you didn’t believe the
Constitution applied to you during Hurricane Katrina?
McRae: No, sir, I didn’t say that.
Prosecutor: So my question is: The Constitution prohibits you from
taking people’s stuff; isn’t that correct?
McRae: That’s correct.
This testimony supports the jury’s conclusion that McRae had the
requisite willful mental state to support the section 242 conviction. More to
the point, even had the jury been presented evidence that McRae was suffering
from PTSD at the time of the incident (a claim the record does not unequivocally
support, as it mentions only “delayed” PTSD, without discussion about when
the disorder would have onset), it is not at all clear that such evidence would
have negated the mens rea that McRae admitted he had on September 2nd.
The district court did not abuse its discretion in denying McRae’s motion for a
new trial on this ground.
2.
McRae argues that he is entitled to a new trial because Department of
Justice attorneys, who were not directly involved in his case, made anonymous
postings about his proceedings in the comments section of various NOLA.com
articles. 40 This government-induced pretrial publicity, he argues, requires a
40In his briefing, McRae focuses mainly on comments made by Sal Perricone, but also
mentions, without elaboration, that two other Department of Justice attorneys posted on
NOLA.com.
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new trial. These postings were unprofessional, inappropriate, and deserving
of our condemnation. Even so, the district court did not err in denying McRae’s
motion for a new trial on this basis.
The Rule 33 motion for a new trial “goes to the fairness of the trial rather
than to the question of guilt or innocence.” 41 We look to whether the “newly
discovered evidence would ‘afford reasonable grounds to question . . . the
integrity of the verdict,’” 42 a difficult standard to summit. A defendant must
show that there is a “substantial possibility of prejudice arising from” the jury’s
contact with the newly discovered evidence, in this case the government
lawyer-produced statements. 43 Said differently, McRae must prove a
connection between the postings in question and the conduct of his trial, such
that we must question our “confidence in the jury verdict.” 44 That
condemnable conduct occurred is not enough.
McRae fails to persuade of actual or presumed prejudice. As an initial
note, McRae cannot point to any evidence of actual jury prejudice. The jury
was repeatedly instructed to avoid any media descriptions of the trial. “A jury
41 United States v. Williams, 613 F.2d 573, 575 (5th Cir. 1980); see also United States
v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (en banc) (“Newly discovered evidence need
not relate directly to the issue of guilt or innocence to justify a new trial, ‘but may be probative
of another issue of law.’ For instance . . . questions regarding the fairness or impartiality of
a jury [] may be grounds for a new trial.”) (quoting United States v. Beasley, 582 F.2d 337,
339 (5th Cir. 1978)).
42 Id. (quoting S. Pac. Co. v. Francois, 411 F.2d 778, 780 (5th Cir. 1969)); see also
United States v. Poole, 735 F.3d 269, 278 (5th Cir. 2013) (“[A] new trial is not a mechanism
for punishing contempt, by a prosecutor or otherwise, but a way to avoid injustice generally
and to avoid a jury verdict for which one has compromised confidence specifically.”).
43 Williams, 613 F.2d at 575.; see also United States v. Capo, 595 F.2d 1086, 1090 (5th
Cir. 1979) (“It has long been recognized as a general rule that a defendant, in order to
establish a deprivation of due process, must show that potential jurors were actually
prejudiced by the pretrial publicity.”); cf. Irvin v. Dowd, 366 U.S. 717, 723 (1961) (stating, in
the context of a motion to change venue, that a juror need not be set aside unless the
defendant “shows the actual existence of such an opinion in the mind of the juror as will raise
the presumption of partiality”).
44 Poole, 735 F.3d at 279.
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is presumed to follow its instructions,” 45 and McRae offers nothing to suggest
that any jury member saw any of Perricone’s NOLA.com postings. Without
connecting the online comments to the jury, the new evidence does not call into
question the integrity of its verdict.
This is not to say that conduct cannot be sufficiently egregious that jury
prejudice will be presumed. In Skilling v. United States, 46 in review of a refusal
to grant a change in venue due to negative publicity, the Court gave guidance
on when the presumption might apply. 47 It emphasized that “[a] presumption
of prejudice . . . attends only the extreme case.” 48 Such cases include those
where the jury pool was exposed to news stories containing a “confession or
other blatantly prejudicial information of the type readers or viewers could not
reasonably be expected to shut from sight,” as well as situations where the
community was so small that it would be difficult or impossible to find
impartial jurors. 49 On the other side of the divide in United States v. Wilcox,
our court held that the presumption of prejudice does not attach when the
defendant’s “complaint of pretrial publicity consists of a story from the website
of a local news station and a series of ‘blog’ postings by one individual on a lone
website.” 50
This case falls much closer to the Wilcox than to the presumptively
prejudicial examples highlighted in Skilling. Here, the specific government
comments discussed by McRae are a small handful out of hundreds of
anonymous, speculative postings. He does not put forth any comments which
45 Weeks v. Angelone, 528 U.S. 225, 234 (2000).
46 561 U.S. 358 (2010).
47 While the motion at issue is different, the focus on whether the publicity is sufficient
to require the court to presume prejudice informs our analysis.
48 Id. at 381.
49 Id. at 382.
50 631 F.3d 740, 747 (5th Cir. 2011).
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had “blatantly prejudicial information” akin to a confession, nor was the New
Orleans area so small, or the comments so prominent, that they could not have
been “shut from sight.” 51
In response, McRae argues that the even if the comments would not
normally be presumed to be prejudicial, they should be in this case because
they were made by government lawyers, albeit not those who were prosecutors
on his case. He points to two cases where prosecutorial statements were
sufficiently extreme to require a new trial, even absent actual prejudice. These
cases trigger a due process-based condemnation of lawyer conduct so egregious
as to foul the temple, a blow to the essentials of process so plain as to leave
little need to pause to weigh evidentiary inferences for impact upon a verdict
given. It is the heavy hand of the court’s supervisory power, wielded rarely but
then firmly when necessary to secure their very ability to deliver the fair trial
promise of due process. They do not persuade. First, in Henslee v. United
States, 52 we ordered a new trial when “the United States Attorney saw fit to
file in the office of the Clerk of the District Court a paper denominated
‘Motion,’” which contained no substantive legal arguments, only prejudicial
information about the defendant, which was “widely publicized both by
newspaper and radio.” 53 We concluded that “no member of the jury offered the
information that he had violated the court’s instruction as to the reading of
newspaper articles concerning the trial,” but nonetheless held that the
prosecutor’s conduct had so tainted the process that due process required a
51 Skilling, 561 U.S. at 382.
52 246 F.2d 190 (5th Cir. 1957).
53 Id. at 192.
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new trial. 54 Second, in United States v. Coast of Maine Lobster Co., 55 the First
Circuit exercised its supervisory power to order a new trial when:
[T]he supervising prosecutor, who was known as such to the jury,
made a public statement in the media while the trial was pending;
the statement was given even further prominence in the
newspaper during the trial and communicated to the majority of
the jury; and it singled out for tougher treatment the very species
of criminal cases that the jury was being called upon to decide. 56
The court was careful, however, to confine its rule limiting public comments
only “to the statements of a prosecutor who is closely associated with the
particular case, either because of his actual participation in it or because he is
known by the jury to be an immediate supervisor of it.” 57
Importantly, in both of these cases, the prosecutor in the case at issue,
in his capacity as a prosecutor and identified as such, made a public, prejudicial
statement about the case that was prominently covered by the local media.
Here, by contrast, Perricone was not a member of the case team, and the online
comments did not identify him either by name or by position. Moreover,
Perricone’s postings were far less prominent than in Maine Lobster or Henslee;
they were one of many in the comments section of internet news articles, below
the text of the article itself, rather than highlighted in local newspapers or
television broadcasts. 58 In the face of anonymous, relatively low-profile
54 Id. at 193; see also id. (“Without in any way imputing an improper motive to the
prosecuting officer here, we do find that in the proper conduct of the affairs of his office it
should have been apparent that for him to file this motion with the inclusion of the self-
serving and irrelevant statements of offenses and crimes not comprehended in the indictment
for which Henslee was on trial might well produce the highly unfortunate publicity that
actually resulted. His failure to apprehend the natural result of his act is as damaging to the
cause of justice as if he had failed in his duty to act with a scrupulous regard for fairness.”).
55 538 F.2d 899 (1st Cir. 1976).
56 Id. at 902-03.
57 Id. at 902.
58 See id. (“The prominence of the publicity is important because it, more than
anything else, affects the likelihood of prejudice to the criminal defendant. An obscure item
on the inside pages of a newspaper, it needs hardly be said, is less likely to place pressure on
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commentary by lawyers who were not directly prosecuting McRae, we cannot
conclude that the district court abused its discretion in refusing to presume
prejudice and order a new trial. 59
III.
Finally, McRae challenges his within-guidelines sentence on procedural
and substantive grounds. Recall that we have already vacated his section 1519
conviction. Our court’s practice when one, but not all counts, within a
multipart conviction has been vacated has generally been to remand to allow
the district court to resentence in the first instance.
“Sentencing is a fact-sensitive exercise that requires district court
judges to consider a wide array of factors when putting together a
‘sentencing package.’” When an appellate court vacates one of
several related convictions, remand is proper so that the district
court can “reconsider the entirety of the (now-changed)
circumstances and fashion a sentence that fits the crime and the
criminal.” . . . The district court may find that a different total
sentence would achieve the goals set forth in 18 U.S.C. § 3553
under these new circumstances, or it may not. But the district
court should have the opportunity to make this determination in
the first instance. 60
We follow this practice here and remand for resentencing. As we need not, we
do not reach McRae’s remaining procedural and substantive objections. 61
a jury than a banner headline on the front page. Finally, the nexus between the views as
published and the issues in the pending trial must be close enough so that a reasonable
person might see an obvious connection. If the views are general or the nexus remote or
strained, the potential for prejudice is not realistic.”).
59 See United States v. Poole, 735 F.3d 269, 279 (5th Cir. 2013) (“Counsel has brought
to our attention no case—and we know of none—in which an appellate court affirmed the
grant of a Rule 33 motion on grounds of prosecutorial misconduct unrelated to confidence in
the jury verdict, merely as a way to punish contemptuous prosecutors.”).
60 United States v. Ekwuruke, 372 F. App’x 521, 525 (5th Cir. 2010) (quoting United
States v. Campbell, 106 F.3d 64, 68 (5th Cir. 1997)).
61 See id.; see also United States v. Akpan, 407 F.3d 360, 377 n.62 (5th Cir. 2005).
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IV.
We AFFIRM the district court’s denial of McRae’s motion for a new trial.
We VACATE McRae’s conviction for violating 18 U.S.C. § 1519, and REMAND
for resentencing.
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