Appeal from the United States District Court for the Eastern District of Louisiana.
For United States of America, Plaintiff - Appellee: Thomas Evans Chandler, Trial Attorney, U.S. Department of Justice, Civil Rights Div - Appellate Section, Washington, DC; Tovah R. Calderon, U.S. Department of Justice, Special Litigation Section, Washington, DC; Jared H. Fishman, U.S. Department of Justice, Civil Rights Division, Washington, DC.
For Gregory Mcrae, Defendant - Appellant: Michael Seth Fawer, Esq., Smith & Fawer, Covington, LA; Robin Elise Schulberg, Attorney, Covington, LA.
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.
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. 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.
The facts of this case are set out in our first opinion from which we here summarize.
On September 2, 2005, several days after Hurricane Katrina made landfall, New Orleans Police Department (" NOPD" ) officer Daren Warren reported for duty. 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."  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. 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." 
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."  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." 
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.
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.
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).
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."
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 McRae trial team, Perricone made numerous anonymous statements, mainly in the online comments section of various NOLA.com articles about the trial. 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!!
Perricone also criticized the performance of the prosecution team, again via online comments that followed NOLA.com articles. None of these postings identified Perricone by name or employer.
McRae was acquitted on the charge that he beat King and Tanner, but was convicted of all other counts. " 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." 
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 count. We affirmed his conviction as to the other three counts. " [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.
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. 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 ...