United States v. Travis McCabe

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

December 17, 2012

No. 11-30345 Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

GREGORY MCRAE; DAVID WARREN,

Defendants - Appellants

No. 11-30529

UNITED STATES OF AMERICA,

Plaintiff - Appellant

v.

TRAVIS MCCABE,

Defendant - Appellee

Appeals from the United States District Court

for the Eastern District of Louisiana

Before JOLLY, HIGGINBOTHAM, and DENNIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

No. 11-30345

This case tells one of the nightmarish stories that arose from Hurricane

Katrina in 2005—the physical devastation, human diaspora, and struggle of the

City to maintain some semblance of law and order, and, in the chaos, a horrific

failure of law enforcement. The case also demonstrates again the axiom that a

cover-up, with its domino effect, begets more tragedy than the crime. It indeed

presents a grim vignette within the larger Katrina story, told here in terms of

legal consequences.

The three appellant former policemen were convicted in the same

trial—conducted from November 8 to December 9, 2010—largely on separate

facts but all arising from the death of one citizen, Henry Glover. Thus, this

opinion will set out the facts and the issues raised on appeal in three separate

parts.

The jury convicted David Warren, a former officer in the New Orleans

Police Department (“NOPD”), of one count of depriving Glover of his right to be

free from the use of unreasonable force by a law enforcement officer, in violation

of 18 U.S.C. § 242, and one count of carrying, using, and discharging a firearm

in furtherance of a felony crime of violence resulting in an individual’s death, in

violation of 18 U.S.C. §§ 924(c) and (j). The district court imposed a sentence of

189 months of imprisonment on the first count of conviction and 120 months on

the second count of conviction, to run consecutively, for a total term of

imprisonment of 309 months. Warren challenges his convictions and sentence

on various grounds. We hold that, because Warren has demonstrated that he

suffered specific and compelling prejudice as a consequence of the district court’s

refusal to sever his trial from that of the other defendants, the district court

abused its discretion in denying Warren’s repeated motions to sever under

Federal Rule of Criminal Procedure 14(a). As a result, we VACATE Warren’s

convictions and sentences and REMAND for a new trial.

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No. 11-30345

The jury also convicted Gregory McRae, another former NOPD officer, of

one count of depriving William Tanner of the right to be free from an

unreasonable seizure by a law enforcement officer, in violation of 18 U.S.C. §

242, one count of denying Glover’s descendants and survivors the right of access

to courts to seek legal redress for a harm, in violation of 18 U.S.C. § 242, one

count of obstruction of a federal investigation, in violation of 18 U.S.C. § 1519,

and one count of use of fire to commit a felony, in violation of 18 U.S.C. § 844(h).

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 challenges his convictions under 18 U.S.C. §§ 242 and

1519 on various grounds and his sentence under 18 U.S.C. § 844(h) on double

jeopardy grounds. We hold that the evidence is insufficient to support McRae’s

conviction for denying Glover’s descendants and survivors the right of access to

courts, and we therefore REVERSE and VACATE that conviction. We AFFIRM

McRae’s other convictions, reject his double jeopardy challenge, and REMAND

for re-sentencing.

Finally, the jury convicted Travis McCabe, a third former NOPD officer,

of one count of obstruction of a federal investigation, in violation of 18 U.S.C. §

1519, one count of making false statements to the FBI, in violation of 18 U.S.C.

§ 1001, and one count of making false statements to a grand jury, in violation of

18 U.S.C. § 1623. The district court later vacated these convictions and granted

McCabe a new trial because of newly-discovered evidence. In McCabe’s case, the

government appeals. We hold that the district court did not abuse its discretion

in granting McCabe a new trial, and we therefore AFFIRM that order.

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No. 11-30345

I.

A.

Thus, once again, we have cause to revisit the effects on human life

wrought by Hurricane Katrina. Briefly, the storm made landfall over the

Louisiana coast due east of New Orleans at approximately 6:00 AM on Monday,

August 29, 2005. Although the City of New Orleans weathered the storm, for

the most part, intact, the subsequent breaches of levees surrounding the City

caused devastating flooding and resulted in widespread destruction of property,

loss of human life, and evacuation of the City.

1.

At the time, David Warren was a rookie patrol officer with the NOPD,

having graduated from the police academy in May 2004. Although Warren was

not scheduled to be on duty at the time of the hurricane’s projected landfall,

because he was unsure whether he would be able to return to the City and report

for duty, he stayed at his home in the Algiers section of the City during the

storm, while his family evacuated to safety. Once the storm passed, Warren

attempted to report to work at the Seventh District station in east New

Orleans—his assigned district—but that area of the City had suffered

devastating flooding. Instead, Warren reported to the Fourth District, which

was the district in which his residence was located in Algiers. That area of the

City, on the west bank of the Mississippi River, had suffered considerably less

flooding because of its higher elevation. From the time he first reported to duty

until Friday, September 2, 2005—the day of the wretched and ghoulish events

of this prosecution—Warren testified he was assigned various duties, ranging

from roving patrols to guarding certain locations and businesses in the Fourth

District. Officers were working twelve-hour shifts during those days. When not

on duty, Warren testified that he patrolled his own neighborhood, which had

experienced looting.

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No. 11-30345

On September 2, 2005, Warren reported to the Fourth District station at

6:00 AM to receive his assignment for that day. He and Officer Linda Howard

were assigned to guard the offices—or substation—of the Fourth District’s

District Investigative Unit (“DIU”) at a shopping center on General De Gaulle

Drive. The DIU offices, which had been damaged during the storm, contained

the papers and files of the detectives of the Fourth District. Warren and Officer

Howard left the Fourth District station and headed to the shopping center,

stopping first at Warren’s residence.

After arriving at the shopping center, Warren and Officer Howard took a

brief tour downstairs and then walked upstairs to the DIU offices. The front of

the shopping center looks onto General De Gaulle Drive; the back of the

shopping center looks onto a parking lot that abuts Seine Street, which runs

parallel to General De Gaulle Drive. Texas Drive intersects Seine Street and

General De Gaulle Drive. Officer Howard testified that the gates on the first

and second floors breezeways, which looked out onto the back parking lot area,

were locked with chains. Warren testified that neither gate was locked, and that

he, in fact, went out on the balcony on the second floor overlooking the back

parking lot when they first arrived at the shopping center.

Approximately thirty minutes after their arrival, Warren and Officer

Howard noticed a man on a bicycle riding up and down the area in the front of

the shopping center. At this point, four days removed from Hurricane Katrina’s

landfall, the city was nearly deserted due to the mandatory evacuation orders.

Warren testified that the man kept gazing in their direction, and after he

bicycled up the street the fifth time, Warren fired a warning shot in the man’s

direction with his personal rifle, which Warren had been carrying with him on

duty since the storm passed. He testified that, because it was merely a warning

shot, he did not aim anywhere near the man.

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No. 11-30345

At some point later, Warren heard noises coming from the back of the

shopping center. He testified that he walked through the gate and onto the back

balcony to see from where the noise was originating. He saw two females, later

identified as Brandie Williams and her sister-in-law Katherine, pushing a

shopping cart, filled with suitcases, from the rear entrance of the Tuesday

Morning store in the shopping center. Warren asked the women if that was

their property in the shopping cart. They responded no, prompting Warren to

order them to leave the cart and exit the area. The women obeyed his order and

left the area.

On their way back to nearby apartments, the two women ran into Glover

and Bernard Calloway. Williams had been staying with her cousin Mickey and

Glover, who was Mickey’s boyfriend, in their apartment. Calloway was the

boyfriend of Glover’s sister, Patrice Glover; they too lived in nearby apartments.

Without running water, electricity, or food, the family had decided that morning

to evacuate. Williams testified that, during their conversation, she asked Glover

and Calloway if they would go to the shopping center parking lot and retrieve

the stolen items she had left in the shopping cart. Glover and Calloway agreed,

according to Williams, and set off for the nearby parking lot.

Shortly after the women left the parking lot, Warren and Officer Howard

were upstairs in the breezeway area when they again heard loud noises coming

from the back parking lot. As to the events that followed, this much is

undisputed: Warren shot at Glover with his personal rifle; Warren stated at the

time of the shooting that he did not believe that he had hit Glover with the shot;

and Glover was transported from the spot where he collapsed on Seine Street,

by William Tanner in a white car—with Calloway and Glover’s brother, Edward

King, accompanying him—to nearby Habans Elementary School to obtain

medical assistance for Glover because the nearest hospital was twenty minutes

away.

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No. 11-30345

With respect to the events surrounding the shooting itself, the jury was

presented with multiple conflicting versions of the events.

2.

Warren testified that he ran to the back balcony area and observed a

Firestone-store marked pick up truck, which he assumed had been stolen, come

to a hard, fast stop. When both the passenger, later identified as Glover, and the

driver of the truck, later identified as Calloway, exited the car, Warren testified

he became concerned by their presence and shouted, “Police, get back.” Instead

of heeding the command, Glover and Calloway, according to Warren, began

charging toward the unlocked gate on the first floor. Warren further testified

that he believed Glover, who was ahead of Calloway, had a weapon in his right

hand or was moving his hands toward his waistband as they charged the

unlocked gate. According to Warren, he became concerned that, if Glover and

Calloway came through the unlocked gate on the first floor, he would have to

expose himself to imminent danger in hunting them down in the shopping

center. He testified that he did not understand why Glover and Calloway

refused to heed his command to stay back; he presumed they did not care about

his order. Thus, he felt threatened for his safety and that of his partner if they

reached the unlocked gate. According to Warren, at the time he fired the shot,

Officer Howard was a bit behind him and, because of the structure of the

shopping center, she would not have been able to see what Warren was viewing

at the time he fired the single shot.

When Warren fired a shot from his rifle at Glover, Glover and Calloway

immediately veered off and ran down Seine Street. Neither man indicated in

any way that Glover had been shot and Warren believed he had not hit Glover.

Warren points out that a later search of the area revealed no blood in the

parking lot. After Glover and Calloway ran from the scene, Officer Howard

suggested that a ranking officer be called. Warren testified that he agreed.

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No. 11-30345

Officer Howard called her supervising officer, Sergeant Purnella Simmons, who,

along with Officer Kayaleah Bell, responded to the scene within minutes of the

call. According to Warren, Sergeant Simmons first spoke with Officer Howard.

Sergeant Simmons then spoke to him, and he told her what happened. Sergeant

Simmons said that, upon her arrival, Warren related to her that he had issued

a verbal command to Glover and Calloway; that he had fired only one shot; that

he had run off looters from the shopping center earlier in the day; and that he

believed he had seen an object in Glover’s hand as he approached the shopping

center.

While they were talking, a call came over the police radio about an

aggravated battery by shooting at the nearby Habans Elementary School.

Sergeant Simmons and Officer Bell left for that location without conducting any

further investigation. Warren testified that, at the time, he thought there may

have been some connection between what had transpired at the shopping center

and the call from Habans Elementary School based on the close proximity in

time but heard nothing more that day about the matter. Sergeant Simmons and

Officer Bell returned to the shopping center approximately thirty minutes to an

hour later. Warren testified that, when Sergeant Simmons asked if he could

work the rest of the day, he responded affirmatively. Warren worked the rest

of the shift with Officer Howard that day; he testified that she was neither

hysterical nor crying, and, in fact, that they even had shared a meal later in the

shift.

3.

The jury was presented with two different versions of Officer Howard’s

statement of the events that unfolded at the shopping center. During cross-

examination, the jury learned that, on April 18, 2009, Officer Howard had given

a statement of the events to NOPD Homicide Sergeant Dugue in which she

confirmed that she had not seen the actual shooting. She had related to

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No. 11-30345

Sergeant Dugue that she and Warren had been chatting when she heard

mumbling or talking in the back parking lot. She went to the back balcony area

and saw two men in the parking lot. She told Warren what she had seen and he

went to the back balcony. She described to Sergeant Dugue that she heard a

gunshot a few moments later, prompting her to run to the back balcony area

where she saw a man lying down or ducking. She then ran to the front of the

breezeway to see if anyone was in the front of the shopping center, but retreated

to the back balcony area after seeing no one in the front of the shopping center.

By that point, both men were gone. When asked by Sergeant Dugue whether

she discussed what had occurred with Warren, Officer Howard could only

remember contacting Sergeant Simmons but could not remember what

happened when Sergeant Simmons arrived on the scene. She told Sergeant

Dugue that she could not remember anything about the men; to her, everything

was “just like shadows.”

When Officer Howard testified at trial, however, she said that, after

Warren had ordered Williams and her companion to leave the back parking lot

area, she and Warren were upstairs when they heard a screeching sound from

truck tires. She testified that she looked through the breezeway onto the back

parking lot area and saw the Firestone-marked pick up truck drive up Seine

Street before it pulled into the parking lot. According to Officer Howard, she and

Warren both watched as Glover and Calloway jumped out of the truck and

approached the shopping cart. Officer Howard testified that Warren then

shouted something, a “loud command” “telling them to get away from there.”

Officer Howard described Glover and Calloway as startled by the command, as

if they did not know someone was at that location. Scared by Warren’s

command, according to Officer Howard, the two men began running away, but

not before Warren positioned himself next to Officer Howard, leveled his

personal rifle, and fired a shot. Contrary to Warren’s account, Officer Howard

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No. 11-30345

testified that she never saw any object in Glover’s hand or any motion to his

waistband. She further testified that neither man made any movement toward

the first floor gate that caused her to be concerned.

According to Officer Howard’s testimony, Glover initially fell like he was

hit by the shot, but then ran down Seine Street away from the shopping center

until he collapsed on the ground. She testified that she could see from her

vantage point at the shopping center that someone was holding Glover’s head.

Shortly thereafter, she watched a group of people place Glover’s body in a white

car, which then drove away from the scene. Crying and hysterical, Officer

Howard testified that she contacted Sergeant Simmons, to whom she related her

version of the events when Sergeant Simmons arrived on the scene with Officer

Bell. Officer Howard also testified that she had indicated to a ranking officer

later that day that it was not a “good” shooting.

In December 2005, Sergeant Simmons was assigned to write a report of

the shooting for the NOPD. Officer Howard testified that she related the same

version of the events for Sergeant Simmons’s report as she did at trial.1 Officer

Howard did not discuss the shooting again until her April 2009 interview with

Sergeant Dugue. During her cross-examination, however, she admitted that the

account of the shooting she related to Sergeant Dugue during the April 2009

interview was “completely different” from the account of the shooting to which

she had just testified on direct. To account for the significant contrary accounts,

Officer Howard excused the contradictions because she had been sleepy and

1

As will be discussed herein, the version of the narrative report containing Officer

Howard’s inculpatory statements about the shooting–the “first report”–was not produced by

the government at trial, if in fact it ever existed at all. The “second report,” which was alleged

by the government to have been fabricated by McCabe to exonerate Warren, states that Officer

Howard saw the Firestone-marked pick-up truck and observed two black males exit the pick-up

truck and hurriedly approach the rear gate of the building, but that she “was in a different

position on the balcony and was unable to observed [sic] all that Officer David Warren

observed prior to him discharging his firearm.”

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No. 11-30345

under the influence of Benadryl at the time of her interview with Sergeant

Dugue. She testified, moreover, that she had mentally suppressed many of the

details of that day. After visiting the shopping center several days after the

interview with Sergeant Dugue, however, she began having “flashbacks” and

certain details of the incident became clarified. She testified that she contacted

Sergeant Dugue and arranged another interview with him, during which she

related the version of events to which she had testified on direct examination,

thus contradicting the April interview; however, she said he did not record her

statement that day.

4.

Calloway testified that, on the morning of September 2, he and Glover

went to retrieve the items Williams said she had left in the shopping cart. He

stated that Glover, who experienced difficulty in operating the Firestone-marked

pick up truck’s manual drive transmission, backed the truck up to the shopping

cart in the parking lot. Calloway explained that he then exited the truck,

walked to the shopping cart, and tried to pick up the first suitcase but it was

heavier than he expected. He testified that, as he looked up to say something to

Glover, who was leaning against the truck and about to light a cigarette, he

heard a “pow” and then a voice that stated, “Leave now.” Calloway ran

immediately in response. At some point, he looked behind him and saw Glover

stumbling. Calloway testified that he ran back to Glover, who by that point had

collapsed on the ground. Eventually, help arrived when William Tanner offered

to take Glover, Calloway, and King in his car to obtain medical attention for

Glover. They placed Glover’s body in Tanner’s car and decided to go to the

nearby Habans Elementary School, where Tanner knew the NOPD had set up

a compound.

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No. 11-30345

5.

Warren continued to serve as an officer with the NOPD for three

additional years after the events of September 2, 2005, until financial

circumstances required that he resign from the department to find work as an

engineer. He thereafter served as a reserve officer until June 2010, when he was

arrested on the instant offenses. On September 27, 2010, a federal grand jury

returned an eleven-count second superseding indictment2 in which Warren was

charged in Counts One and Two. Count One charged Warren with willfully

depriving Glover of his right to be free from the use of unreasonable force by a

law enforcement officer acting under color of law and without legal justification,

in violation of 18 U.S.C. § 242.3 Count One also charged that the offense

involved the use of a dangerous weapon, and an attempt to kill, and resulted in

bodily injury to, and the death of, Glover. Count Two charged Warren with

knowingly using, discharging, and carrying a firearm during and in relation to,

and possessing a firearm in furtherance of a felony crime of violence, to wit: the

commission of the civil rights offense charged in Count One. Count Two further

charged that Warren caused the death of Glover through the use and discharge

of the firearm, and that Glover’s death involved circumstances constituting

2

The grand jury returned an eleven-count indictment on June 11, 2010. A superseding

indictment was returned on August 6, 2010.

3

Section 242 provides, in relevant part:

Whoever, under color of any law . . . willfully subjects any person . . . to the

deprivation of any rights, privileges, or immunities secured or protected by the

Constitution or laws of the United States . . . shall be fined under this title or

imprisoned not more than one year, or both; and if bodily injury results from the

acts committed in violation of this section or if such acts include the use,

attempted use, or threatened use of a dangerous weapon, explosives, or fire,

shall be fined under this title or imprisoned not more than ten years, or both;

and if death results from the acts committed in violation of this section or if such

acts include . . . an attempt to kill, shall be fined under this title, or imprisoned

for any term of years or for life, or both, or may be sentenced to death.

18 U.S.C. § 242.

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No. 11-30345

murder as defined in 18 U.S.C. § 1111, all in violation of 18 U.S.C. §§ 924(c)4 and

(j).5

Warren repeatedly moved before, during, and at the conclusion of the trial,

for severance of his trial from that of his co-defendants based on improper

joinder under Federal Rule of Criminal Procedure 8(b) and prejudicial joinder

under Federal Rule of Criminal Procedure 14(a). The district court denied the

motion each time, opting instead to provide limiting instructions to the jury. A

month-long jury trial followed in November 2010. At the end of evidence, the

district court indicated its intent to charge the jury both as to murder and

manslaughter with respect to 18 U.S.C. § 924(j), notwithstanding that Count

Two of the indictment did not include a manslaughter charge, and that Warren

strenuously objected to the proposition. The government initially had no

position, but ultimately requested that the court instruct the jury with respect

to voluntary manslaughter as defined in 18 U.S.C. § 1112 for purposes of 18

U.S.C. § 924(j).

4

Section 924(c) provides, in relevant part:

[A]ny person who, during and in relation to any crime of violence . . . uses or

carries a firearm, or who, in furtherance of any such crime, possesses a firearm,

shall, in addition to the punishment provided for such crime of violence . . . (I)

be sentenced to a term of imprisonment of not less than 5 years; (ii) if the

firearm is brandished, be sentenced to a term of imprisonment of not less than

7 years; and (iii) if the firearm is discharged, be sentenced to a term of

imprisonment of not less than 10 years. . . .

18 U.S.C. § 924(c)(1)(A).

5

Section 924(j) provides:

A person who, in the course of a violation of subsection (c), causes the death of

a person through the use of a firearm, shall (1) if the killing is a murder (as

defined in section 1111), be punished by death or by imprisonment for any term

of years or for life; and (2) if the killing is manslaughter (as defined in section

1112), be punished as provided in that section.

18 U.S.C. § 924(j).

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No. 11-30345

The jury convicted Warren of depriving Glover of his right to be free from

the use of unreasonable force by a law enforcement officer, in violation of 18

U.S.C. § 242. The jury found that the offense resulted in Glover’s death and that

the offense involved an attempt to kill. The jury also convicted Warren of

carrying, using, and discharging a firearm in furtherance of a crime of violence

resulting in an individual’s death, in violation of 18 U.S.C. §§ 924(c) and (j). For

purposes of § 924(j), the jury found that the offense did not constitute murder as

defined in 18 U.S.C. § 1111 but that the offense did constitute voluntary

manslaughter as defined in 18 U.S.C. § 1112. The district court overruled

Warren’s challenge to the constitutionality of § 924(c)’s application to law

enforcement officers. The court sentenced Warren to 189 months of

imprisonment on the § 242 conviction and 120 months on the §§ 924(c) and (j)

conviction, determining that the sentences should run consecutively, for a total

term of imprisonment of 309 months. Warren timely appeals.

B.

1.

After Glover collapsed on the street, some of his friends and family made

their way to the scene and gathered around him. Tanner appeared on the scene

and offered to take Glover in his car to obtain medical assistance. Instead of

taking Glover to a hospital, Tanner drove to Habans Elementary School, where

the NOPD Special Operations Division maintained a temporary base. At trial,

Tanner testified that he drove to Habans Elementary School because it was

closer than any hospital, and he thought that Glover would receive medical

assistance there.

Tanner, King, and Calloway arrived at Habans Elementary School in

Tanner’s car with Glover’s body in the backseat. They were not so warmly

greeted by a swarm of police officers and impolitely ordered at gunpoint to exit

the car. A verbal and physical altercation ended with Tanner, King, and

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No. 11-30345

Calloway in handcuffs, sitting on the ground.6 During this altercation, King

stated either that he intended to shoot whoever shot his brother or kill whoever

killed his brother, depending on whose recollection of the events one credits. The

fatally wounded Glover remained silently in the backseat of Tanner’s car, and

no one rendered Glover medical assistance. The police officers, to the extent it

was on their minds, apparently thought that Glover was already dead. He may

have been.

After the police officers subdued Tanner, King, and Calloway, 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 property. Glover remained in

the car, which was to become his coffin.

Captain Jeffrey Winn, who was responsible for the NOPD Special

Operations Division, was not present at Habans Elementary School when

Tanner, King, and Calloway arrived. He arrived at the school later and, after

assessing the situation, instructed Officers Scheuermann and McRae to move

Tanner’s car, with Glover’s body, to a more secure location away from the school.

Scheuermann and McRae were to park the car at a location north of the school,

over a levee near the Mississippi River, close to a police station and a United

States Border Patrol office.

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-

6

Tanner and King testified that the officers physically assaulted them, as well as

directed degrading racial slurs toward the three men, who are all black, during the altercation.

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No. 11-30345

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 did 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.

2.

McRae was indicted on five criminal counts in the same indictment as

Warren. Following the trial, the jury convicted him on Counts Four, Five, Six,

and Seven for depriving Tanner of the right to be free from an unreasonable

seizure by a law enforcement officer, in violation of 18 U.S.C. § 242, depriving

Glover’s descendants and survivors of the right to access courts to seek legal

redress for a harm, in violation of 18 U.S.C. § 242, obstruction of a federal

investigation, in violation of 18 U.S.C. § 1519, and use of fire to commit a felony,

in violation of 18 U.S.C. § 844(h). The court sentenced McRae to concurrent 87

month sentences for his convictions under Counts Four, Five, and Six, and a

consecutive 120 month sentence for his conviction under Count Seven. McRae

timely appeals.

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No. 11-30345

C.

1.

In December 2005, Sergeant Simmons prepared a police report addressing

Glover’s shooting. In preparing this report, Sergeant Simmons interviewed

Warren and Officer Howard. Warren testified that he and Sergeant Simmons

discussed what happened that day, which was then reflected in the typed

narrative report. Her report contained multiple pages and attachments, some

handwritten. The true contents of her report and the manner in which it was

prepared are disputed.

According to the government, Sergeant Simmons alone prepared an

authentic first report based on interviews that she alone conducted, and someone

then replaced her report with a fraudulent second report written by McCabe.

The first report was unfavorable to Warren: It contained statements from Officer

Howard indicating that Warren was not justified in shooting Glover. It also

contained a description of a bloody towel at the scene of the shooting that

discredited Warren’s insistence that his shot missed Glover. No hard copy of the

first report exists. The second report, a copy of which does exist, omitted these

details and also contained a review of the shooting by Lieutenant Italiano and

Captain Kirsch, higher-ranking NOPD officials, exonerating Warren. The

government theorizes that McCabe prepared the second report to cover up

Warren’s wrongdoing.

According to McCabe, no cover-up took place. The second report is not a

second report at all, but rather the authentic report, which Sergeant Simmons

prepared with his assistance. In assisting Sergeant Simmons in preparing the

report, McCabe took part in the interview of Officer Howard, who never made

the statements the government now attributes to her in the supposed first

report. McCabe told this basic version of the events to the FBI during its

investigation of Glover’s shooting, and again to the grand jury.

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No. 11-30345

2.

McCabe was indicted on three criminal counts in the same indictment as

Warren and McRae. He was indicted on Counts Eight, Ten, and Eleven for

obstruction of a federal investigation by falsifying a police report, in violation of

18 U.S.C. § 1519, making false statements to the FBI concerning the report, in

violation of 18 U.S.C. § 1001, and making false statements to the grand jury

concerning the report, in violation of 18 U.S.C. § 1623. The jury convicted

McCabe on all three counts.

Following the trial of Warren, McRae, and McCabe, Warren’s attorneys

found a police report among the documents given to them by Warren to assist in

the preparation of his defense. Importantly, the newly-discovered report was

materially the same as the second, supposedly fraudulent report. Warren told

his attorneys that Sergeant Simmons gave him this report in December 2005,

at the time everyone agrees that Sergeant Simmons prepared a police report.

Warren’s attorneys notified McCabe’s attorneys of the newly-discovered report,

and McCabe then filed a motion for a new trial based on the existence of newly-

discovered evidence.

The district court received arguments on the motion for a new trial and

conducted an evidentiary hearing. At the hearing, Warren testified that

Sergeant Simmons had given him this heretofore-unknown copy of the report in

a private meeting in December 2005. He stated that he alerted his attorneys to

its existence during the trial when he noticed minor differences between the

report admitted into evidence and the report that he remembered being given

by Sergeant Simmons. His attorneys, who did not think that the additional

report had any bearing on his defense, did not locate the report until after the

trial. Sergeant Simmons also testified at the hearing, and stated that she never

provided Warren with a copy of any police report related to Glover’s shooting.

After reviewing the newly-discovered report and considering its impact on

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No. 11-30345

McCabe’s conviction, the district court concluded that the report supported

McCabe’s defense and badly undermined the government’s theory. The court

therefore granted McCabe’s motion for a new trial in a sixteen-page order

recounting these peculiar developments. The government timely appeals.

We exercise appellate jurisdiction over these appeals under 28 U.S.C. §

1291 and 18 U.S.C. § 3742.

II.

We now turn to the arguments raised by the separate appellants,

beginning with Warren. Warren argues that the district court erred in denying

his multiple motions for severance based on misjoinder under Rule 8(b) and

prejudicial joinder under Rule 14(a) of the Federal Rules of Criminal Procedure.

He contends that the district court’s denial of these motions constitutes

reversible error.

A.

First, Warren challenges the propriety of joining the charges against him

with the charges against his co-defendants under Rule 8(b). “A claim of

misjoinder is a matter of law that we review de novo, but we may affirm if we

find that misjoinder occurred but that the error was harmless.” United States

v. Whitfield, 590 F.3d 325, 355 (5th Cir. 2009); see also United States v. Maggitt,

784 F.2d 590, 595 (5th Cir. 1986); United States v. Manzella, 782 F.2d 533, 540

(5th Cir. 1986). “Whether joinder is proper is normally determined from the

allegations in the indictment.” United States v. Posada-Rios, 158 F.3d 832, 862

(5th Cir. 1998) (citing United States v. Faulkner, 17 F.3d 745, 758 (5th Cir.

1994)).

Under Rule 8(b), two or more defendants may be charged in a single

indictment “if they are alleged to have participated in the same act or

transaction, or in the same series of acts or transactions, constituting an offense

or offenses.” Fed. R. Crim. P. 8(b). “All defendants need not be charged in each

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No. 11-30345

count.” Id. As the plain language of Rule 8(b) provides, there is no requirement

“that each defendant have participated in the same act or acts.” United States

v. Krenning, 93 F.3d 1257, 1266 (5th Cir. 1996). Here, there can be no dispute

but that the allegations in the eleven counts of the second superseding

indictment do not charge Warren and his co-defendants with participating in the

same act or transaction. “All that is required,” however, “is ‘a series of acts

unified by some substantial identity of facts or participants.’” Id. (quoting

United States v. Dennis, 645 F.2d 517, 520 (5th Cir. Unit B 1981), overruled on

other grounds, United States v. Lane, 474 U.S. 438 (1986)). “Whether the counts

of an indictment fulfill the ‘same series’ requirement is determined by examining

the relatedness of the facts underlying each offense.” United States v. Harrelson,

754 F.2d 1153, 1176 (5th Cir. 1985) (internal quotation marks omitted). “When

the facts underlying each offense are so closely connected that proof of such facts

is necessary to establish each offense, joinder of defendants and offenses is

proper.” Id. at 1176-77 (internal quotation marks omitted). “When there is no

substantial identity of facts or participants between the two offenses, there is no

‘series’ of facts under Rule 8(b).” Id. at 1177 (internal quotation marks omitted).

Accordingly, for joinder of the defendants to be proper in the second superseding

indictment, there must be some substantial identity of facts or participants

between the offenses.

Warren contends that proper joinder of multiple defendants in an

indictment requires a conspiracy charge to fulfill the “same series” requirement.

The second superseding indictment does not, as Warren correctly points out,

charge a conspiracy among Warren and his co-defendants. Warren thus

maintains that he should not have been indicted with McCabe, who was indicted

for fabricating the December 2, 2005 police report (favorable to Warren) in

connection with the Glover shooting, or with McRae, who disposed of and burned

Glover’s body by burning Tanner’s car on the levee. Although multi-defendant

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No. 11-30345

and multi-offense indictments often charge a conspiracy among some or all

defendants, we have rejected the contention that proper joinder of multiple

defendants and multiple offenses requires a conspiracy charge. Dennis, 645 F.2d

at 520. In Dennis, we stated that “[i]t is clear that the government need not

allege a conspiracy in order to join defendants or counts.” Id. Instead, “[w]hat

is required is a series of acts unified by some ‘substantial identity of facts or

participants.’” Id. (quoting United States v. Nettles, 570 F.2d 547, 551 (5th Cir.

1978)).

As we have recounted several times, Counts One and Two charge Warren

with offenses related to the single incident of Glover’s shooting at the shopping

center. Although the remaining nine counts clearly are temporally separate

from that event, Warren’s shooting of Glover was nevertheless the catalyst for

the events that followed, which are charged in the other counts. Put another

way, the allegations related to the Glover shooting in Counts One and Two

connect Warren to the allegations against the other defendants in Counts Three

through Eleven; indeed, those nine remaining counts mention the shooting

and/or burning of Glover’s body. The government would need to prove that

Glover was shot in order to put Tanner and King, Tanner’s car, and Glover’s

body at Habans Elementary School. Furthermore, the government would need

to establish the circumstances surrounding Glover’s shooting in order to prove

that Italiano and McCabe engaged in an obstructive cover-up of the shooting.

Thus, the charges in the indictment build upon one another: Warren shoots

Glover; Glover is transported to Habans Elementary School, where NOPD

officers are alleged to have beaten Tanner and King, and then disposed of

Tanner’s car and Glover’s body by burning the car on the levee; and Italiano and

McCabe are alleged to have obstructed the subsequent investigation into the

shooting and to have made false statements in connection with the shooting.

The fact that Glover was shot ties the allegations related to the shooting itself,

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No. 11-30345

with the burning of Tanner’s car and Glover’s body, with the subsequent cover-

up of the circumstances related to the shooting. In the light of the continuity of

facts, therefore, we hold there was a series of acts unified by substantial identity

of facts and joinder was proper under Rule 8(b). Krenning, 93 F.3d at 1266. The

district court therefore did not err in denying the motion to dismiss based on

improper joinder.

B.

We are much more convinced that the district court erred in not granting

Warren’s motions to sever his trial from that of his co-defendants under Rule

14(a). We review the denial of a motion to sever for abuse of discretion.

Whitfield, 590 F.3d at 355-56; United States v. Mitchell, 484 F.3d 762, 775 (5th

Cir. 2007). To prevail, however, Warren must overcome significant obstacles.

The federal judicial system evinces a preference for joint trials of defendants who

are indicted together because joint trials “promote efficiency and serve the

interests of justice by avoiding the scandal and inequity of inconsistent verdicts.”

Zafiro v. United States, 506 U.S. 534, 537 (1993) (internal quotation marks

omitted). It is the rule, therefore, not the exception, that “persons indicted

together should be tried together, especially in conspiracy cases.” United States

v. Pofahl, 990 F.2d 1456, 1483 (5th Cir. 1993). But at the same time, the Federal

Rules of Criminal Procedure recognize that circumstances may be presented

where the prejudice to a defendant from joinder with a co-defendant(s) in a joint

trial overrules the interest in judicial economy. Rule 14(a) therefore provides,

in relevant part: “If the joinder of offenses or defendants in an indictment . . .

appears to prejudice a defendant or the government, the court may order

separate trials of counts, sever the defendants’ trials, or provide any other relief

that justice requires.” Fed. R. Crim. P. 14(a).

Warren has not sat on his hands in this respect. He moved before, during,

and at the conclusion of the evidence for severance under Rule 14(a), contending

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No. 11-30345

that the spillover effect from the evidence presented in connection with his four

co-defendants would deny him a fair trial. The district court was not receptive

and denied each motion, opting instead to give the jury limiting instructions.

The district court also denied his motion for a new trial under Rule 33 of the

Federal Rules of Criminal Procedure based on the failure to sever. Warren

continues to argue on appeal that the district court abused its discretion in

refusing to sever his trial, recounting the substantial and compelling prejudice

he suffered from the highly prejudicial and inflammatory evidence and

testimony introduced in connection with the charges against the four other

defendants that had little or no applicability to him.

Warren argues that, before the case was sent to the jury, crucial facts

relevant to severance had become apparent: Up until the moment Warren

encountered Glover and Calloway, he was dutifully performing his assignment

of guarding a shopping center office, which contained police investigative files.

He had not been involved in any conduct with the other officers on trial or with

anyone else in unlawful or suspicious activity. After he shot Glover whom he

thought to be a possibly armed looter, he continued to perform his guard duty,

and he points out that he subsequently served as a police officer without blemish

for two more years. He argues that he was unaware of and remained

disassociated from the subsequent acts of the other co-defendant officers, who

allegedly attempted to cover up facts related to the shooting. He further

contends that there was a high risk that the jury would infer that he must have

been guilty of a crime because of his fellow officers’ attempt to cover it up or to

obstruct its investigation. There was a substantial risk that if the jury found the

other officers to have been guilty of cover-up crimes, it erroneously, and without

supporting evidence, would also conclude that Warren had somehow participated

with them, had received the benefit of their actions, and was therefore deserving

of some level of punishment consistent with the other police officers’ misconduct.

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No. 11-30345

Our case law does not reflect a liberal attitude toward severance: “We will

not reverse a conviction based upon denial of a motion to sever ‘unless the

defendant can demonstrate compelling prejudice against which the trial court

was unable to afford protection, and that he was unable to obtain a fair trial.’”

Whitfield, 590 F.3d at 356 (quoting United States v. Massey, 827 F.2d 995, 1004

(5th Cir. 1987)); see also Mitchell, 484 F.3d at 775 (“To demonstrate that the

court abused its discretion in denying the motion for severance, ‘the defendant

bears the burden of showing specific and compelling prejudice that resulted in

an unfair trial, and such prejudice must be of a type against which the trial court

was unable to afford protection.’” (quoting United States v. Morrow, 177 F.3d

272, 290 (5th Cir. 1999)). “Severance is proper ‘only if there is a serious risk that

a joint trial would compromise a specific trial right of one of the defendants, or

prevent the jury from making a reliable judgment about guilt or innocence.’”

Mitchell, 484 F.3d at 775 (quoting Zafiro, 506 U.S. at 539). “When the risk of

prejudice is high, a district court is more likely to determine that separate trials

are necessary, but less drastic measures, such as limiting instructions, often will

suffice to cure any risk of prejudice.” Zafiro, 506 U.S. at 539 (citing Richardson

v. Marsh, 481 U.S. 200, 211 (1987)). “A defendant is entitled to a reversal on

this issue only if he identifies specific events during trial and demonstrates that

these events caused him substantial prejudice.” United States v. Thomas, 627

F.3d 146, 157 (5th Cir. 2010) (citing United States v. Lewis, 476 F.3d 369, 384

(5th Cir. 2007)); see also United States v. Ellender, 947 F.2d 748, 755 (5th Cir.

1991) (“Meticulous advocacy is required to isolate events occurring in the course

of a joint trial and then to demonstrate that such events caused substantial

prejudice.”). Our review of the record convinces us that the facts in Warren’s

appeal fall within the relatively few cases in which this and other courts have

held that severance was warranted.

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No. 11-30345

In United States v. Erwin, 793 F.2d 656 (5th Cir. 1986), for example, we

reversed the conviction of an appellant whose perjury charges were only

peripherally related to a drug and racketeering conspiracy. Id. at 666. We

determined that, as the trial progressed, very little of the “mountainous

evidence,” including evidence of two kidnappings, two beatings, and one killing,

“was usable against her, and almost none of it applied directly.” Id. We thus

held that the prejudice from the joint trial “far outweighed” any benefit of

judicial economy. Id. Here, the charge against Warren–that he acted unlawfully

in shooting Glover–was only tangentially relevant to McRae’s alleged ghoulish

crime of obstruction related to Glover and the alleged cover-up charged against

McCabe. Indeed, McRae and McCabe could have been convicted even if Warren

had been found innocent, and as the trial progressed it became increasingly

apparent that very little of the evidence of the alleged cover-ups was properly

usable against Warren, and that almost none of it applied directly to him.

In United States v. Cortinas, 142 F.3d 242 (5th Cir. 1998), we held that

Rodriguez and Mata were entitled to a severance of their trial from seven others

tried for offenses involved in a drug conspiracy. Although they had been part of

the conspiracy initially, the record showed clearly that Rodriguez and Mata

withdrew from the conspiracy in 1989, before a violent motorcycle gang, “the

Bandidos,” joined the conspiracy and later committed a drive-by shooting and

other violence in Michigan as part of their collection efforts for the conspiracy.

“Prejudice was found in that case because the defendants were never associated

with the [“Bandidos”] gang, and because the evidence of the gang’s activities was

‘highly inflammatory’ . . . .”U.S. v. Bieganowski,313 F.3d 264, 288 (5th Cir. 2002)

(citing Cortinas, 142 F.3d at 438).

Similar to the situation in Cortinas, in Warren’s trial, there was no

evidence that he acted dishonestly or was in any way associated with the acts of

his co-defendant officers in obstructing justice and covering-up evidence. He was

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No. 11-30345

not charged with the alleged obstruction and cover-up crimes, but still he was

required to sit before the jury while the emotion-charged testimony was unveiled

to the jury and to hear his name bandied around the fringes of those offenses as

part of the “Fourth District Fraternity” intent on protecting one of its own. With

the similarities between Warren’s case, Erwin, and Cortinas in mind, we

proceed.

1.

To set the stage, we will review the charges and allegations against the

defendants. Warren again reminds us that he was charged only in Counts One

and Two of the second superseding indictment. The allegations in those counts

only involved the shooting of Glover at the shopping center on the morning of

September 2, 2005. Scheuermann (who was acquitted) and McRae were charged

in Counts Three through Seven under the civil rights statutes for the beating of

King and Tanner, the seizure of Tanner’s car through burning, and the burning

of Glover’s body. For burning the car and Glover’s body, they also were charged

with obstructing the investigation into the Glover shooting and with the use of

fire to commit civil rights deprivations and obstruction of justice. Next, Italiano

(who was acquitted) and McCabe were charged in Counts Eight through Eleven

with preparing and submitting a false narrative report with the intent to

obstruct the federal investigation into Glover’s shooting, with making false

statements to the FBI during its investigation into the Glover shooting, and with

making false statements to a federal grand jury concerning the allegedly false

narrative report. Of significance to our consideration of Warren’s argument is

that the grand jury charged no conspiracy among the defendants to cover up

Warren’s role in Glover’s shooting.

First, we consider the McCabe prosecution. To demonstrate compelling

prejudice from the court’s refusal to sever his trial, Warren points to the

extensive evidence and testimony presented during the government’s case

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No. 11-30345

against McCabe concerning the allegedly false narrative report McCabe drafted.

Warren argues that he was forced to stand trial on his charges against a

backdrop of evidence related to a report that tended to exonerate him for

shooting Glover, but which the government was contending was a made-up lie.

In other words, he asserts that the failure to grant a severance resulted in his

being tried for a “cover-up” investigation with McCabe.7 Thus, he maintains

there can be “no doubt” but that the jury made findings with respect to the

falsity of the report—finding McCabe guilty of authoring and submitting the

false report to obstruct the investigation into the Glover shooting, of making

false statements to the FBI, and of making false statements to the grand

jury—which spilled over into its determination of Warren’s guilt or innocence on

Counts One and Two.

Next, we look to the prosecution of McRae. Warren contends that he

suffered specific and compelling prejudice from the ton of horrible evidence the

government used to convict McRae, and that little of it was relevant to the

indictment against him. Warren notes that Tanner’s car and Glover’s body were

burned after the separate events pertaining to his conduct at the shopping

7

The government charged that McCabe had drafted his own sanitized, fraudulent

version of the two-page narrative section of the December 2, 2005 police report and submitted

that version as if it had been written by Sergeant Simmons. McCabe’s version of the narrative

section exonerated Warren and omitted the primary evidence the government sought to use

against him: the inculpatory statements of Officer Howard, along with the so-called “bloody

towel” that tended to disprove Warren’s claim that he believed he had not hit anyone with his

shot from the balcony that morning. McCabe’s version of the report also contained a “fictitious

review” of the incident by Italiano and Captain Kirsch that exonerated Warren in the shooting.

The government thus contended at trial, and elicited testimony from Sergeant Simmons and

Officer Howard, that Sergeant Simmons had authored an original version of the narrative

section detailing the Glover shooting and that this original version accurately detailed the

shooting with both Officer Howard’s trial version and Warren’s version of what had occurred

that morning. The government elicited this testimony notwithstanding the facts that it could

not actually produce Sergeant Simmons’s original version of the report and that Sergeant

Simmons could not explain how she came to have in her possession the second page of the

allegedly fraudulent report–instead, the government permitted Sergeant Simmons to describe

to the jury the information she had included in her original, unproduced version.

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No. 11-30345

center, and that the government introduced no evidence that Warren knew of

the burning or that he ever communicated with McRae about destruction of the

body as part of a cover-up. Warren nevertheless argues that at trial the

government treated the counts against McRae as evidence of a cover-up, in

which Warren was involved and guilty by association–he was a member of the

“Fourth District Fraternity.” Warren further points to the testimony and

evidence presented (and later argued) by the government: the trauma suffered

by Glover’s family as they sought answers to his disappearance after he had

been shot. Warren also points to the highly emotional and prejudicial

photographs of Glover’s burned body–the “bag of bones.” Although the district

court excluded some photographs after defense objections, Warren contends that

the photographs of Glover’s bones and skull were shown with testimony about

how the skull later went missing from evidence. Warren also points to the

inflammatory testimony elicited concerning the beating by white officers–McRae

and Scheuermann–of King and Tanner, who are both black. The jury also heard

testimony that, during the beatings, the two officers used degrading racial slurs

toward King, Tanner, and Calloway. Even though Warren had no connection to

these allegations, the government’s evidence, he argues, compounded the racial

aspect of his own case,8 thereby further prejudicing the jury and conflating his

conduct with culpable members of the Fourth District. Finally, Warren

complains about adverse spillover from witnesses who testified during Italiano’s

defense, during McCabe’s cross-examination, and during the government’s

rebuttal case.

In sum, Warren argues that the spillover effect from the cumulative

evidence and testimony overwhelmed the jury’s consideration of the simple issue

it had to decide in determining a verdict on Counts One and Two: whether

8

Warren is white, while Glover was black. In addition, Officer Howard, Sergeant

Simmons, and Officer Bell are black.

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No. 11-30345

Warren acted unlawfully when he shot Glover from the balcony of the shopping

center.

The government responds that Warren was not tried for the criminal acts

committed by the other defendants. It does not, however, address Warren’s

primary prejudice arguments; for example, the argument of prejudice resulting

from being tried with a defendant who was indicted and being prosecuted for

fabricating the police report almost completely favorable to Warren’s version of

the shooting.

We really do not view this question as close in view of how the trial of this

case unfolded. First, we hold that Warren has met the difficult burden of

showing that, as a result of the district court’s refusal to sever his trial, he

suffered compelling prejudice. During oral argument before this court, counsel

for Warren suggested that, if Warren had been tried alone, the trial would have

lasted three days, an approximation our review of the trial transcript confirms.

Instead of a three-day trial focused only on evidence and testimony concerning

the events underlying the allegations in Counts One and Two–whether Warren

unlawfully shot Glover in the shopping center parking lot–Warren was subjected

to sit before the jury for a trial lasting a month, in which sordid evidence and

testimony was introduced about the beatings of King and Tanner at Habans

Elementary School, the disposal and burning of Tanner’s car and Glover’s body;

and, through the trial of McCabe relating to the cover-up of the Glover shooting

through the alleged fabrication of the police report, in which the government

sought to show that a report tending to exonerate Warren in the Glover shooting

was a contrivance and fraud.

In evaluating the degree of prejudice inflicted by the joint trial, Warren

was clearly prejudiced from the joint trial, to the extent that, we think, there

may have been a different result if he had not been tried with McRae and

McCabe, even if such a result may not necessarily have been complete

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No. 11-30345

exoneration of all charges. Voluminous evidence and testimony was presented

which, as a result of the joint trial, suggested that McCabe was in a conspiracy

with Warren to exonerate Warren for his conduct on the morning of September

2, 2005. The narrative report McCabe was convicted of fabricating to obstruct

the investigation into the Glover shooting tended to, if not fully exonerate

Warren, minimize the wrongfulness of his conduct in shooting Glover.

Furthermore, notwithstanding that no conspiracy was charged among the

defendants, our review of the record strongly suggests that the government was

attempting to try the cases against each defendant as a whole piece, in effect a

conspiracy, involving each of the defendants in a grand scheme in the Fourth

District to engage in criminal conduct to protect Warren for his role in Glover’s

shooting. For instance, government counsel asked Warren during cross-

examination if he knew that his transfer to the Fourth District had been made

formal on December 2, 2005, the same date that appears on the report of the

Glover shooting. Warren testified that he believed his transfer had been made

effective prior to that date. Government counsel followed up with a series of

questions–later sustained after Warren objected–about other officers, including

McCabe, who had also received promotions in and around the time of December

2005. Extensive questioning then followed concerning the telephone call Warren

received at the Royal Sonesta Hotel in November 2005 and whether Warren had

been transferred to the Fourth District at the time he directed the caller to the

Fourth District for further information about her son.9 Warren testified that he

9

Warren testified that, while working telephone duty at the NOPD command at the

Royal Sonesta Hotel in November 2005, he received a phone call from a woman trying to locate

her son. The woman said that her son had been shot near a Chuck E. Cheese restaurant on

September 2 and taken to Habans Elementary School where there had been some problems.

She also stated that his body had been placed in a car that was then burned on a levee. In

response, Warren explained to her that she had not reached the Fourth District station and

that, to obtain information, she should go in person to the Fourth District station and speak

with an officer there. He testified that he believed her story to be “fantastic,” and that as a

result, he thought she needed to speak with someone in person at the station. Warren did not

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No. 11-30345

recalled being transferred at some point earlier but was unaware of the

administrative formalities of the transfer process. Government counsel then

asked: “But in any event, by that point you were part of this 4th District

Fraternity and you knew to keep your mouth shut about what Ms. Glover had

told you?” Objections and a limiting instruction followed.

The most compelling prejudice, in our mind, resulted from the evidence,

testimony, and photographs presented in connection with the government’s case

against McRae for the burning of Glover’s body, all of which had an effect of

associating Warren with the burning of Glover’s body and subsequent cover-up.

Especially troubling were the photographs of Glover’s remains after they had

been burned and the emotional testimony of Glover’s family. Some of the

evidence and testimony would have been inadmissible against Warren had he

been tried alone,10 and we are convinced that the severely emotional nature of

the testimony and photographs prejudiced Warren. The government

furthermore attempted, at various points, to subtly link Warren with McRae and

the burning of Glover’s body by presenting testimony that Warren had driven by

Tanner’s charred car on the levee in the weeks after the shooting. The argument

for the irrelevance of this type of evidence in a case tried individually would have

been much stronger. In sum, although “‘the mere presence of a spillover effect

does not ordinarily warrant severance,’” United States v. McCord, 33 F.3d 1434,

1452 (5th Cir. 1994) (quoting Faulkner, 17 F.3d at 759), in these circumstances,

report the phone call to anyone at the Fourth District. Warren did not learn or hear anything

further about the woman who made the phone call, but the similarities between the time and

place she described to him, aroused doubts whether he had missed the man with his shot on

September 2, 2005.

10

We decline to speculate which specific pieces of evidence would have been admissible

at Warren’s standalone trial.

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No. 11-30345

we must conclude that Warren has cited specific and compelling instances of

prejudice that resulted from joinder at trial with his co-defendants.

2.

Even though Warren has shown that, as a result of a joint trial, he has

suffered compelling prejudice that resulted in an unfair trial, he also must

demonstrate that the district court was unable to afford protection against the

prejudice. Mitchell, 484 F.3d at 775. Warren acknowledges that, as a general

proposition, limiting instructions are sufficient to cure prejudicial joinder, but

contends that the instructions given by the district court here did not allow the

jury to make a reliable judgment about his guilt because the jury was prevented

from compartmentalizing the evidence to apply only to the culpable defendant.

Further compounding juror confusion, the district court, in connection with the

limiting instructions, made a series of rulings relating to contentious testimonial

statements made by Warren admitted “not for the truth of the matter asserted.”

The government argues that the limiting instructions given by the district court

at various points in the trial were sufficient to cure any prejudice.

The rule has been stated by the Supreme Court: “When the risk of

prejudice is high, a district court is more likely to determine that separate trials

are necessary, but . . . less drastic measures, such as limiting instructions, often

will suffice to cure any risk of prejudice.” Zafiro, 506 U.S. at 539 (citing

Richardson, 481 U.S. at 211); see also Faulkner, 17 F.3d at 759; Manzella, 782

F.2d at 540; Harrelson, 754 F.2d at 1174-75. Here, however, we are unconvinced

that limiting instructions did, or could have cured the prejudice of the spillover

effect from the government’s case against McCabe for the alleged cover-up or the

voluminous testimony, and evidence the government presented in connection

with McRae’s burning of Glover’s body. See Cortinas, 142 F.3d at 248. And as

government counsel aptly demonstrated during closing arguments, it was easy

to confuse the allegations against the defendants. In response to defense

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No. 11-30345

argument that there was no forensic evidence to verify whether the pictures of

Glover’s wound11 depicted an entry or exit wound, and whether a dark spot on

his shirt was a bullet hole, government counsel stated during closing:

So I wish I could tell that that dark spot was in fact a hole but I

can’t, and that’s why the burning here is so pernicious and so evil

because it denied justice and denied the Glover family the

opportunity to do those kind [sic] of testing. And I wish it hadn’t

happened, but it did. And the defendants can’t be like the

Menendez brothers, okay, you remember them, you know, who

killed their parents and then kind of cried and whined that they

were orphans. All right. They can’t say they don’t have any forensic

evidence and then go burn the body. That’s ridiculous.

Warren’s counsel quickly objected, arguing that Warren had not been charged

in the counts concerning the burning of the body. Government counsel qualified

his argument, stating that Warren “didn’t have anything to do with the burning,

okay, I am not suggesting that.” But if the government could so nonchalantly

group the defendants together, then we cannot be reasonably confident that the

jury could compartmentalize the evidence separately for each defendant. See

United States v. Merida, 765 F.2d 1205, 1219 (5th Cir. 1985) (“The test for

severance under Rule 14 is whether the jury could sort out the evidence

reasonably and view each defendant and the evidence relating to that defendant

separately.”).

We do not fault the district court for declining to sever Warren’s case

before trial, but as the trial progressed, however, and the evidence and

testimony presented became irrelevant and unusuable against Warren, and

increasingly inflammatory to him, we are of the belief that limiting instructions

could not mitigate the prejudice. In particular, (1) the marginal relationship

between the charge and the evidence against Warren and that against his co-

11

Photographs of Glover’s body–before it had been burned–lying face-down in the

blood-covered backseat of Tanner’s car were taken at Habans Elementary School and

admitted into evidence.

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No. 11-30345

defendants; (2) the significant difference between the simpleness of the

underlying charges–essentially use of excessive force–against Warren, in the

performance of his duty as a police officer, and the crimes alleged against his co-

defendants involving dishonesty, corruption, obstruction and cover-up; (3) the

highly inflammatory and prejudicial nature of the charges and evidence against

the co-defendants, from which Warren was disassociated, involving the burning

Glover’s body in Tanner’s car, the racially motivated beating of Tanner and King;

and the alleged alteration and distortion of a police investigative report convince

us that the district court abused its discretion.

Warren’s case is one of those situations warranting a severance as opposed

to the majority of cases that do not require severance because the inflammatory

prejudice was not as great, e.g. Bieganowski, 313 F.3d at 288, or the difference

between the types of crimes charged, on the one hand, and the related evidence,

on the other, was not so great. We therefore hold that the district court abused

its discretion in denying Warren’s severance motion when it was reurged at the

close of evidence. For the reasons given, Warren’s convictions and sentences are

vacated and the matter is remanded to the district court for further proceedings

not inconsistent with this opinion.12

12

Warren also challenges his convictions and sentence on various other grounds. He

argues that the government’s failure to disclose a crucial discrepancy in the testimony of a key

government witness constituted reversible error under Brady v. Maryland, 373 U.S. 83, 87

(1963). Because we are remanding for a new trial, this argument is moot. In addition, he

contends that the district court erred in giving the jury an instruction, over his objection, with

respect to manslaughter under 18 U.S.C. § 1111 as it relates to his indictment under 18 U.S.C.

§§ 924(c) and (j). The principle of double jeopardy, we note, prevents the government from

retrying Warren on 18 U.S.C. § 924(j)(1)–as it is incorporated in the 18 U.S.C. § 924(c)

charge–because the jury found that the death of Glover did not constitute murder as defined

in 18 U.S.C. § 1111; instead the jury found it constituted manslaughter under 18 U.S.C. §

1112. Warren also maintains: that the district court erred in several of its evidentiary rulings;

that the district court erred in holding that 18 U.S.C. § 924(c) applies to a law enforcement

officer in the performance of his duties; and that the district court erred in holding that 18

U.S.C. § 924(j) requires a mandatory consecutive sentence. We pretermit consideration of

these issues in view of the fact that Warren must be retried; any analysis and discussion would

be dicta as unnecessary to resolve this appeal.

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No. 11-30345

III.

We now turn to the arguments raised by appellant Gregory McRae.

McRae was convicted on four criminal counts based on the conduct we have

described: denying Glover’s family access to courts, seizing Tanner’s car,

obstructing a federal investigation, and using fire to commit a felony.

A.

McRae was convicted under 18 U.S.C. § 242 for—in somewhat of an odd

fit, given the gruesome circumstances of the crime—denying Glover’s

descendants and survivors the right of access to courts to seek legal redress for

a harm. Under the same statute, he was convicted of using fire and a dangerous

weapon during the commission of this offense. The statute provides, in pertinent

part:

Whoever, under color of any law, statute, ordinance,

regulation, or custom, willfully subjects any person in any

State, Territory, Commonwealth, Possession, or District to the

deprivation of any rights, privileges, or immunities secured or

protected by the Constitution or laws of the United States, or

to different punishments, pains, or penalties, on account of

such person being an alien, or by reason of his color, or race,

than are prescribed for the punishment of citizens, shall be

fined under this title or imprisoned . . . and . . . if such acts

include the use, attempted use, or threatened use of a

dangerous weapon, explosives, or fire, shall be fined under

this title or imprisoned not more than ten years, or both . . . .

18 U.S.C. § 242. Of course, the civil right of access to courts is a well-established

and fundamental right protected by the United States Constitution. Ryland v.

Shapiro, 708 F.2d 967, 971 (5th Cir. 1983) (citing Chambers v. Balt. & Ohio R.R.

Co., 207 U.S. 142, 148 (1907)). Thus, because the Constitution protects the right

of access to courts, the plain language of § 242 suggests criminal liability for

those who, under color of law, willfully deprive others of that right. 18 U.S.C.

§ 242.

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No. 11-30345

The government’s theory is that by burning Glover’s body, McRae

frustrated a lawsuit that Glover’s family might have pursued to redress Glover’s

wrongful death or loss of constitutional rights. McRae’s conduct delayed the

identification of Glover’s remains and made it more difficult to discern the cause

of his death, thereby denying Glover’s family meaningful access to courts.

McRae contends that the evidence is insufficient to support a conviction on this

theory. He points out that there was no denial of such a right because the

government did not present evidence that any member of Glover’s family, or

anyone else, intended to bring a lawsuit or that any particular cause of action

was available to a member of Glover’s family.

McRae preserved his challenge to the sufficiency of the evidence in the

district court through a motion for acquittal, and we therefore review de novo the

district court’s denial of his motion. United States v. Mitchell, 484 F.3d at 768

(citing United States v. Anderson, 174 F.3d 515, 522 (5th Cir.1999)). We will

view the evidence in the light most favorable to the verdict and determine

whether a rational jury could have found McRae guilty beyond a reasonable

doubt based on the evidence presented. Id.

Before reviewing the sufficiency of the evidence, however, we establish a

background fact for our review: Although the right of access to courts is well

established, vindicating that right through criminal prosecution is not. The

government has not been able in its appellate brief or oral argument to cite any

other case in which a criminal defendant was charged under § 242 for denying

access to courts. The United States Department of Justice Civil Rights Division

submitted a post-argument letter advising the Court that it “is aware of no other

such prosecution.” We are left, therefore, in the uncomfortable position of

reviewing a conviction under a novel theory of criminal liability, without

precedent to light our way.

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No. 11-30345

To the extent that it is relevant, we will draw on precedent in which

individuals sought to vindicate the right of access to courts through civil actions.

Under this line of precedent, two types of claims emerge:

In the first are claims that systemic official action frustrates

a plaintiff or plaintiff class in preparing and filing suits at the

present time. Thus, in . . . prison-litigation cases, the relief

sought may be a law library for a prisoner’s use in preparing

a case, or a reader for an illiterate prisoner, or simply a

lawyer. In denial-of-access cases challenging filing fees that

poor plaintiffs cannot afford to pay, the object is an order

requiring waiver of a fee to open the courthouse door for

desired litigation . . . . In cases of this sort, the essence of the

access claim is that official action is presently denying an

opportunity to litigate for a class of potential plaintiffs. The

opportunity has not been lost for all time, however, but only

in the short term; the object of the denial-of-access suit, and

the justification for recognizing that claim, is to place the

plaintiff in a position to pursue a separate claim for relief once

the frustrating condition has been removed.

The second category covers claims not in aid of a class of suits

yet to be litigated, but of specific cases that cannot now be

tried (or tried with all material evidence), no matter what

official action may be in the future. The official acts claimed

to have denied access may allegedly have caused the loss or

inadequate settlement of a meritorious case, the loss of an

opportunity to sue, or the loss of an opportunity to seek some

particular order of relief . . . . These cases do not look forward

to a class of future litigation, but backward to a time when

specific litigation ended poorly, or could not have commenced,

or could have produced a remedy subsequently unobtainable.

The ultimate object of these sorts of access claims, then, is not

the judgment in a further lawsuit, but simply the judgment in

the access claim itself, in providing relief obtainable in no

other suit in the future.

Christopher v. Harbury, 536 U.S. 403, 413-14 (2002) (internal citation omitted).

We think that the government’s theory in this case is most analogous to

the second type, or backward-looking, claim. There is no prospective relief that

37

No. 11-30345

can undo the burning of Glover’s body or provide clearer physical evidence on

which to base a lawsuit. Any loss of access to courts in the instant case cannot

be redressed by future official action.

To maintain a backward-looking claim, a plaintiff must identify (1) a

nonfrivolous underlying claim; (2) an official act that frustrated the litigation of

that claim; and (3) a remedy that is not otherwise available in another suit that

may yet be brought. Id. at 415. We think it is reasonable that if a civil claim

requires proof bearing on these three elements, a criminal conviction requires

at least as much. The government failed to present evidence to support these

elements, and therefore McRae’s conviction for this offense cannot stand.

The government failed to present evidence of a nonfrivolous underlying

claim because it never identified an actual cause of action that an actual person

lost. Id. at 418; Lewis v. Casey, 518 U.S. 343, 349 (1996). The government did

not specify, in the second superseding indictment, which of Glover’s descendants

or survivors were denied access to courts, and what cause of action they lost. In

a subsequent bill of particulars, the government stated that the relevant

descendants or survivors included “any children, parents or siblings of Glover

who would be eligible under state or federal law to file a claim” and that the

causes of action “include, but are not limited to, wrongful death actions in state

court and civil actions for deprivation of rights in federal court.” Although the

bill of particulars shed some insight on the government’s theory of liability, it

still did not identify a particular person or a particular cause of action.

The lack of clarity in the indictment carried forward into the government’s

presentation of evidence. The government never explained what it meant by a

cause of action for the “deprivation of rights” or who had standing to pursue that

nebulous cause of action. We can infer that the “wrongful death” action to which

the government alluded is a wrongful death action under Louisiana state law,

but again no evidence was presented as to who had standing to pursue the claim

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No. 11-30345

or with respect to the elements necessary to support it. The failure to produce

evidence of an actual cause of action that an actual person lost is critical because

it makes it impossible to assess, as we must, whether the person’s claim would

be non-frivolous. See Christopher, 536 U.S. at 415. This defect is especially

acute in the context of wrongful death, a statutory cause of action that strictly

limits who may bring a claim based on who survives the deceased. La. Civ. Code

Art. 2315.2.A.

Although the government’s evidence introduced various of Glover’s

survivors—a sister, a mother, and a child, to name a few—it provided no

indication that any survivor had any intention to sue. There is extensive

evidence that Glover’s family was concerned for him, and that they persistently

sought information on what happened to him. But concern and persistence are

not tantamount to a frustrated intent to sue. The jury cannot have rationally

concluded that someone lost a claim without evidence that someone intended to

bring a claim in the first place; or stated differently, the jury could not have

rationally concluded that someone suffered a constitutional injury if he has not

been harmed by the denial of a constitutional right he never asserted. Here for

example, no person came to the door of the courthouse so no one was ever denied

the constitutional right of entry.

Without presenting evidence of a nonfrivolous underlying claim, it was

impossible for the government to then present evidence that the litigation of

such a claim was frustrated or that the remedy that would accompany such a

claim was irretrievably lost.

The only attempt that the government made to present evidence on these

points was to jointly stipulate that the statute of limitations for a civil action

under 42 U.S.C. § 1983 is one year from the date on which a plaintiff becomes

aware of an injury. It is not clear what purpose this stipulation served. The

government never identified anyone who intended to bring a claim under § 1983

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No. 11-30345

or what, specifically, that person’s claim would have been. Assuming that a

particular family member had intended to bring a claim for excessive force under

§ 1983, it is not clear how the statute of limitations stood in that person’s way.

The evidence at trial indicated that Glover’s family knew that he was a victim

of a police shooting the day that he was shot. Glover’s family was capable of

knowing that Glover died from that shooting at least by the time that his

remains were identified in April 2006. Although the government presented

evidence that McRae’s burning of Glover’s body made it difficult to discern the

precise cause of death, it presented no evidence that bringing a § 1983 claim

would have been impracticable based on the evidence available through civil

discovery. Perhaps the government feared that in arguing that it would be

impracticable to prove a civil claim for an unjustifiable police shooting, it might

contradict itself. After all, the government in this very case attempted to prove

an unjustifiable police shooting beyond a reasonable doubt, while Glover’s family

member bringing a civil claim would only have needed to prove the same by a

preponderance of the evidence.

To be clear, we take no position on whether McRae, in fact, prevented one

of Glover’s family members from bringing a § 1983 claim. We simply think that

stipulating as to the statute of limitations for such a claim does not prove that

the claim, and its accompanying remedy, was forever lost because of McRae’s

conduct.

We hold that the evidence is insufficient to support McRae’s conviction for

denying Glover’s family members access to courts, and we therefore reverse his

conviction on count five of the second superseding indictment.

B.

McRae was also convicted under 18 U.S.C. § 242 for depriving William

Tanner of his right to be free from an unreasonable seizure. He was convicted

of using fire and a dangerous weapon during the commission of this offense.

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Again, 18 U.S.C. § 242 prohibits the willful deprivation of constitutional rights

under color of law. The right at issue for this conviction is the Fourth

Amendment “right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures.” U.S. Const. amend.

IV. “A ‘seizure’ of property occurs when there is some meaningful interference

with an individual’s possessory interests in that property.” United States v.

Jacobsen, 466 U.S. 109, 113 (1984).

Importantly, the second superseding indictment charged McRae with

seizing Tanner’s car by burning it. McRae contends that he cannot have seized

the car by burning it because the car had already been seized at that point: the

car had been moved twice on the school property, and driven away from the

school before it was burned. He argues that Tanner’s possessory interest in the

car had therefore already suffered meaningful interference. The government

responds that the burning was merely the culmination of a course of conduct, all

of which constitutes an unreasonable seizure.

McRae raises this argument for the first time on appeal, and we therefore

review only for plain error. United States v. Jasso, 587 F.3d 706, 709 (5th Cir.

2009). Plain error review involves four prongs:

First, there must be an error or defect. . . . 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 affect[s] the fairness,

integrity or public reputation of judicial proceedings.’

United States v. Delgado, 672 F.3d 320, 329 (5th Cir. 2012) (en banc) (quoting

Puckett v. United States, 556 U.S. 129, 135 (2009)) (alterations in original).

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No. 11-30345

Although McRae’s position is eminently logical, we do not think that the

district court, in entering judgment based on this conviction, committed any

error that is beyond reasonable dispute. Assuming that it is error to regard the

burning of the car as a seizure, the error is not plain because the law neither

clearly nor obviously limits the meaning of seizure to the initial moment of

dispossession.

McRae correctly observes that some circuits, with respect to the seizure of

property, limit the meaning of seizure to initial dispossession. See Lee v. City of

Chicago, 330 F.3d 456, 466 (7th Cir. 2003); Fox v. Van Oosterum, 176 F.3d 342,

351 (6th Cir. 1999); United States v. Jakobetz, 955 F.2d 786, 802 (2d Cir. 1992).

But at least one other circuit defines the seizure of property more broadly, to

include a course of conduct that interferes with possessory interests. See Presley

v. City of Charlottesville, 464 F.3d 480, 487-89 (4th Cir. 2006). McRae does not

point to any precedent in this circuit staking a position in this split, and we are

not aware of any. “Because this circuit’s law remains unsettled and the other

federal circuits have reached divergent conclusions on this issue . . . [McRae]

cannot satisfy the second prong of the plain error test—that the error be clear

under existing law.” United States v. Salinas, 480 F.3d 750, 759 (5th Cir. 2007).

With respect to seizures of the person, rather than property, the law is

equally unclear, and the lack of clarity further undermines a contention of plain

error in this case. We know that seizures of the person do not end at the initial

moment of seizure. See Graham v. Connor, 490 U.S. 386, 394-96 (1989). How

long the seizure of the person goes on, however, is not defined with precision in

our circuit, and it is a question that divides other circuits. See Brothers v.

Klevenhagen, 28 F.3d 452, 455-57 (5th Cir. 1994); Valencia v. Wiggins, 981 F.2d

1440, 1443-44 (5th Cir. 1993). The imprecision in describing the temporal

quality of seizure in the context of seizures of the person discredits any

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No. 11-30345

argument that it is clear or obvious that a seizure is over at the moment of

initial dispossession in this context—that is, seizure of property.

We hold that it is neither clear nor obvious that McRae’s burning of

Tanner’s car could not constitute an unreasonable seizure under the Fourth

Amendment, and we therefore affirm his conviction under count four of the

second superseding indictment.

C.

McRae was also convicted under 18 U.S.C. § 1519 for obstructing a federal

investigation by burning Tanner’s car, which contained Glover’s body. The

statute under which McRae was convicted provides as follows:

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.

18 U.S.C. § 1519.

McRae raises two challenges to this conviction, which we will consider

separately.

1.

McRae first contends that the evidence is insufficient to support his

conviction because although he admits to burning Tanner’s car and Glover’s

body, the government presented no evidence that he knew that Glover had been

shot by another police officer. This insufficiency is important, McRae argues,

because if he did not knowingly destroy evidence of a police shooting, then he did

not knowingly obstruct an investigation within the jurisdiction of federal

authorities. The government points to evidence that suggests McRae may have

known that Glover was shot by another police officer. It also contends that even

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No. 11-30345

if McRae did not know that Glover was shot by a police officer, § 1519 still

criminalizes his conduct because the federal nature of what the statute

proscribes is only jurisdictional.

By framing this argument principally as a challenge to the sufficiency of

the evidence, McRae invites us to skip past a threshold question of statutory

interpretation: whether § 1519’s requirement that a defendant act knowingly

and with an obstructive intent—the statute’s mens rea—applies to the federal

nature of the investigation that the defendant obstructs. See id. If the statute

does not require McRae to have known that the investigation he would obstruct

would be a federal investigation, then there was no need for the government to

present evidence on that point. If, in other words, the statute’s mens rea does

not apply to the federal nature of the investigation, then there is no reason for

us to review the evidence on whether McRae knew that Glover had been shot by

a police officer. We must therefore address the meaning of the statute first.

The problem for McRae is that he never argued in the district court that

§ 1519 requires knowledge or intent of the federal nature of the investigation

obstructed. This point was never raised in his motions for acquittal or in his

motion for a new trial. The most obvious way to raise the argument would have

been by objecting to the jury instructions. But here again, McRae failed to make

an argument about what § 1519 requires. Instead, he allowed the jury to be

instructed as follows:

The government is not required to prove that the defendant

knew his conduct would obstruct a federal investigation, or

that a federal investigation would take place, or that he knew

the limits of federal jurisdiction. However, the government is

required to prove that the investigation that the defendant

intended to . . . obstruct . . . did, in fact, concern a matter

within the jurisdiction of an agency of the United States.

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No. 11-30345

Because McRae failed to object to this instruction, which is directly adverse to

the argument he now advances on appeal, we review only for plain error.13 Fed.

R. Crim. P. 30(d). Although McRae may have preserved a challenge to the

sufficiency of the evidence, he did not preserve this challenge concerning the

meaning of the statute. Essentially, his argument on appeal “is that there was

insufficient evidence to convict him under the jury instruction that the court

should have given,” despite his acquiescence to the instruction the court actually

gave. United States v. Fontenot, 611 F.3d 734, 737 (11th Cir. 2010). Under the

circumstances, plain error is the appropriate standard of review. Id.14 We will

therefore reverse only if faced with an error that is so clear or obvious that it is

not subject to reasonable dispute.15 Delgado, 672 F.3d at 329.

13

In a post-argument letter, McRae’s appellate counsel conceded that McRae “did not

file objections to the district court’s jury instruction[s] and did not file proposed instructions.”

McRae joined in the objections and instructions filed by his co-defendant, Dwayne

Scheuermann, but Scheuermann did not challenge the district court’s instructions with respect

to § 1519.

14

Although Fontenot was a case from the Eleventh Circuit, we note that the Supreme

Court has stressed that plain-error review applies to “all” forfeited errors. Puckett v. United

States, 556 U.S. 129, 136 (2009). Additionally, there is no question that plain-error review

applies to a failure to object to jury instructions. See FED. R. CRIM. P. 30(d); Johnson v.

United States, 520 U.S. 461, 465-66 (1997); United States v. Betancourt, 586 F.3d 303, 305-06

(5th Cir. 2009). If a defendant could obtain de novo review of what should have been charged

by challenging evidentiary sufficiency, he could work an end-run around forfeiture of a

challenge to jury instructions. Fontenot, 611 F.3d at 737 (“Fontenot’s [insufficiency] argument

is, in essence, that there was insufficient evidence to convict him under the jury instruction

that the court should have given.”).

15

McRae made a related argument in his post-verdict motions and in his appellate brief

that because the Second Superseding Indictment stated that the investigation involved a

shooting “by a . . . Police Department Officer” the government then had to prove that McRae

knew that Glover had been shot by a police officer. This argument is seriously flawed.

First, the argument came after the verdict, and after the jury had been instructed to

the contrary. Second, the requisite mens rea derives from the statute, not the indictment.

McRae still has not contested the meaning of the statute. Third, even if the mens rea derives

from the indictment, the indictment merely states that the investigation McRae intended to

obstruct involved a police shooting. It takes a monumental leap to conclude that McRae had

to know this detail, or other details, of the shooting to be guilty of obstructing an investigation

into it. If, for example, the indictment stated that McRae “intended to obstruct an

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No. 11-30345

It is neither clear nor obvious that § 1519 requires that a defendant know

that the investigation he obstructs will be a federal investigation. The statute

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.” 18 U.S.C. § 1519

(emphasis added). On its face, § 1519 appears to make the relationship between

the United States and the matter being obstructed a jurisdictional relationship.

Id. This is significant in that the mens rea of a federal criminal statute does not

ordinarily extend to the statute’s jurisdictional elements. United States v. Feola,

420 U.S. 671, 677 n.9 (1975). The text of the statute, then, does not plainly

support McRae.16

investigation into a shooting that occurred on Camp Street,” it would be unreasonable to

suggest that the government had to prove that McRae knew that the relevant shooting

occurred on Camp Street. Fourth, the sentence in the indictment on which McRae bases his

argument follows a sentence that charges McRae with the generic elements of § 1519. The

sentence on which he bases his argument fleshes out the factual basis for the charge, whereas

the preceding sentence fleshes out the legal basis. The factual basis is accurate: Glover was,

in fact, shot by a police officer. In sum, McRae’s argument concerning the indictment is not

well-received and does not influence our analysis.

16

The available legislative history further discredits McRae’s position. Senator Leahy

entered the following statement in the Congressional Record:

Section 1519 is meant to apply broadly to any acts to destroy or fabricate

physical evidence so long as they are done with the intent to obstruct,

impede or influence the investigation or proper administration of any

matter, and such matter is within the jurisdiction of an agency of the

United States, or such acts done either in relation to or in contemplation

of such a matter or investigation. The fact that a matter is within the

jurisdiction of a federal agency is intended to be a jurisdictional matter,

and not in any way linked to the intent of the defendant.

148 Cong. Rec. 14,449 (2002). The Senate Report is consistent with Senator Leahy’s view:

Section 1519 is meant to apply broadly to any acts to destroy or fabricate

physical evidence so long as they are done with the intent to obstruct,

impede or influence the investigation or proper administration of any

matter, and such matter is within the jurisdiction of an agency of the

United States, or such acts done either in relation to or in contemplation

of such a matter or investigation.

S. Rep. No. 107-146, at 14 (2002). Based on this legislative history, it appears that Congress

did not intend that a criminal defendant’s knowledge or intent would have to extend to the

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We are not aware of any United States Supreme Court or Fifth Circuit

precedent addressing this issue, much less resolving the issue in McRae’s favor.

The Eighth Circuit, however, has concluded that “the term ‘knowingly’ in § 1519

modifies only the surrounding verbs” and that the matter obstructed need only

be “within the jurisdiction of a federal agency as a factual matter.” United

States v. Yielding, 657 F.3d 688, 713-14 (8th Cir. 2011). The Eleventh Circuit,

while disclaiming any holding regarding the actual requirements of the statute,

has nonetheless concluded that it is “plausible” to read the language in § 1519

referring to federal agencies as “a simple jurisdictional element that operates

independently of the defendant’s intent or knowledge.” Fontenot, 611 F.3d at

737.

In the light of the statute’s text and the available precedent from other

circuits, we hold that it is neither clear nor obvious that a defendant must know

or intend that the investigation he obstructs be of a federal nature in order to be

convicted under 18 U.S.C. § 1519. Even assuming the district court erred in its

interpretation of the statute, it did not plainly err. For McRae, this means that

he did not have to know that Glover had been shot by a police officer, and

therefore that Glover’s death might become the subject of a federal, rather than

state, investigation.17

2.

McRae further contends that § 1519 is unconstitutionally vague. He

argues that because the statute is ungrammatical, does not require obstruction

of a pending or imminent investigation, and does not require a corrupt intent,

it fails to provide fair notice of what conduct is prohibited. McRae further argues

federal nature of the matter being obstructed.

17

McRae does not argue that he was unaware that Glover’s body would be the subject

of some kind of investigation. At trial, McRae testified that at the time he burned Glover’s

body, he thought that Glover was a homicide victim.

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that the statute affords federal authorities discretion to prosecute innocent

conduct. The government responds that because § 1519 clearly prohibits

McRae’s conduct, he cannot complain of its vagueness.

McRae raises these arguments for the first time on appeal, and we

therefore review for plain error. Jasso, 587 F.3d at 709. As explained above, we

will reverse only if faced with an error that is so clear or obvious that it is not

subject to reasonable dispute. Delgado, 672 F.3d at 329.

The Fifth Amendment’s Due Process Clause protects against criminal

convictions based on impermissibly vague statutes. Holder v. Humanitarian

Law Project, 130 S. Ct. 2705, 2718 (2010). “‘A conviction fails to comport with

due process if the statute under which it is obtained fails to provide a person of

ordinary intelligence fair notice of what is prohibited, or is so standardless that

it authorizes or encourages seriously discriminatory enforcement.’” Id. (quoting

United States v. Williams, 553 U.S. 285, 304 (2008)). A person whose conduct

is clearly proscribed by a statute cannot, however, complain that the law is

vague as applied to the conduct of others. Id. at 2719 (quoting Hoffman Estates

v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982)).

McRae’s argument concerning the vagueness of the statute’s grammar is

that the intent requirement—“intent to impede, obstruct, or influence”—applies

to the object, “any matter within the jurisdiction of any department or agency of

the United States,” but does not apply to the later clause, “or in relation to or

contemplation of any such matter or case.” 18 U.S.C. § 1519. Consequently,

McRae argues, the statute criminalizes “knowingly . . . destroy[ing] . . . [a]

tangible object . . . in relation to or contemplation of [a] matter or case,” without

any requirement of an obstructive intent. Id. Under this construction, a person

could be convicted of obstructing justice without ever having intended to obstruct

justice.

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McRae is not the first person to notice § 1519’s awkward wording. But

other circuits, faced with the same argument, have construed the statute as

criminalizing three circumstances involving a matter within the jurisdiction of

a federal agency and a defendant acting with an obstructive intent: “(1) when a

defendant acts directly with respect to the investigation or proper

administration of any matter, that is, a pending matter, (2) when a defendant

acts in contemplation of any such matter, and (3) when a defendant acts in

relation to any such matter.” Kernell, 667 F.3d at 753 (internal quotation marks

and alterations omitted); Yielding, 657 F.3d at 711. This construction, which

reads intent into every clause, is plausible and gives effect to the statute’s

language as a whole. Because the statute is reasonably susceptible to this

construction, we do not think that it is so ungrammatical that the district court

committed a clear or obvious error in this case.

McRae next argues that § 1519 is vague because unlike other obstruction

of justice statutes, which require a “relationship in time, causation or logic”

between the defendant’s conduct and an investigation, § 1519 criminalizes the

obstruction of contemplated investigations, which may happen in the distant

future. United States v. Aguilar, 515 U.S. 593, 599 (1995). Because § 1519 does

not appear to require the obstruction of a pending or imminent investigation,

McRae argues that § 1519 might criminalize conduct with a highly tenuous

connection to any investigation at all. The connection between the defendant’s

conduct and an investigation might be so remote in some cases that the statute

punishes innocent conduct.

Although we are receptive to McRae’s well-presented argument on this

point, the potential for other hypothetical defendants to be punished for conduct

remotely connected to an investigation is not a reason for overturning this

particular conviction. In reviewing a statute for vagueness, we ask whether the

statute gave the defendant fair notice that his conduct was prohibited. If the

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statute notified McRae that his conduct was unlawful, he cannot complain about

the notice it might provide to others. Humanitarian Law Project, 130 S. Ct. at

2719; United States v. Mazurie, 419 U.S. 544, 550 (1975); Parker v. Levy, 417

U.S. 733, 756 (1974).

McRae did not clearly or obviously lack notice that his conduct was

unlawful. He knowingly burned the body of a homicide victim and must have

realized that an investigation into that homicide would follow. McRae testified

that he did not know exactly how Glover died, but he also testified that he

thought that Glover was the victim of a homicide. As a police officer, there can

be little doubt that McRae understood that Glover’s body—that is, a homicide

victim’s body—would be the subject of an investigation. As fate would have it,

the investigation that McRae obstructed was no ordinary homicide investigation,

but instead a far-reaching federal investigation into alleged civil rights

violations and an alleged police cover-up. But the fact that the actual

investigation was not of the sort that McRae expected does not mean that the

statute failed to notify him that burning a body violated its terms. McRae is

unlike a hypothetical defendant who, for example, innocently shreds a document

that ends up being implicated in a federal investigation years later. His

speculation about the notice furnished to such a hypothetical defendant does not

render § 1519 clearly unconstitutionally vague. Humanitarian Law Project, 130

S. Ct. at 2719.

McRae next argues that § 1519 fails to give adequate notice of the conduct

prohibited because it does not require a “corrupt” intent, as other obstruction of

justice statutes do. Compare 18 U.S.C. § 1519 with 18 U.S.C. §§ 1512(b), 1503.

According to McRae, the absence of the word “corrupt” in § 1519 removes any

requirement of knowing wrongdoing or evil intent, which is a fixture of

obstruction of justice. See Arthur Andersen, LLP v. United States, 544 U.S. 696,

705-06 (2005).

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Here again, McRae does not reveal clear or obvious unconstitutional

vagueness. Although the statute may not require a “corrupt” intent, it still

requires some form of obstructive intent, specifically a knowing destruction

undertaken with the “intent to impede, obstruct, or influence the investigation

or proper administration of [a] matter.” 18 U.S.C. § 1519. At least one other

circuit to consider the meaning of this language has suggested that there is “no

dispute” that criminal liability under § 1519 requires some corrupt intent.

Kernell, 667 F.3d at 754. In any event, due process does not require Congress

to draft all obstruction of justice statutes uniformly, and we are unpersuaded

that McRae lacked sufficient notice of the criminal state of mind described in §

1519.

McRae’s last argument concerning vagueness is that because the statute

is so broadly worded, it affords limitless discretion to federal authorities on what

conduct to prosecute. He proposes that the statute might allow authorities to

prosecute the well-intended destruction of contraband or the technically false

completion of paperwork by a person assuming a new identity in a witness

protection program. Because this argument is, again, based entirely on the

effect that the statute may have on other, hypothetical defendants, we have no

reason to consider it. Humanitarian Law Project, 130 S. Ct. at 2719.

We hold that § 1519 is not clearly or obviously unconstitutionally vague

as it pertains to McRae.

3.

In sum, McRae’s challenges to his conviction for obstructing a federal

investigation fail because he fails to demonstrate plain error. In reviewing this

particular conviction for plain error, we have not had occasion to make any

holdings as to what § 1519 requires. We have simply held that the district court

did not plainly err, and we affirm McRae’s conviction on Count Six of the second

superseding indictment for that reason.

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D.

McRae was convicted under 18 U.S.C. § 844(h) for using fire to commit a

felony. The indictment alleged that McRae used fire in denying Glover’s family

access to courts, seizing Tanner’s car, and obstructing a federal investigation.

The statute under which McRae was convicted provides as follows:

(h) Whoever--

(1) uses fire or an explosive to commit any felony which may

be prosecuted in a court of the United States, or

(2) carries an explosive during the commission of any felony

which may be prosecuted in a court of the United States,

including a felony which provides for an enhanced

punishment if committed by the use of a deadly or dangerous

weapon or device shall, in addition to the punishment

provided for such felony, be sentenced to imprisonment for 10

years.

18 U.S.C. § 844(h).

The district court, applying § 844(h), sentenced McRae to 120 months of

imprisonment to run consecutively with the 87 months imprisonment he

received for his other convictions. McRae argues that the sentence imposed for

his violation of § 844(h), to the extent that it is based on the felony of denying

Glover’s family access to courts or seizing Tanner’s car, violates the Fifth

Amendment prohibition on double jeopardy.18 He argues that the convictions for

denying access to courts and seizing the car would not have been felonies were

it not for the use of fire, and that he cannot be punished twice for the mere use

of fire. The government responds that McRae’s sentence does not violate the

prohibition on double jeopardy because Congress intended multiple punishments

in this instance.

18

We will assume, as McRae does, that he could not be sentenced consecutively under

18 U.S.C. §§ 844(h) and 1519.

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Our review is de novo. United States v. Smith, 354 F.3d 390, 398 (5th Cir.

2003) (citing United States v. Kimbrough, 69 F.3d 723, 728 (5th Cir.1995)).

The Double Jeopardy Clause of the Fifth Amendment provides that no

person “shall . . . be subject for the same offense to be twice put in jeopardy of life

or limb.” U.S. Const. amend. V. “When a defendant challenges multiple

punishments for the same conduct—rather than multiple prosecutions—our

double jeopardy analysis turns on whether Congress has authorized the result

at issue. If Congress has enacted statutes that separately punish the same

conduct, there is no double jeopardy violation.” Smith, 354 F.3d at 398 (citing

Missouri v. Hunter, 459 U.S. 359, 368-69 (1983); United States v. Prestenbach,

230 F.3d 780, 782 n. 9 (5th Cir.2000)).

As an initial matter, we will disregard the conviction for denying access

to courts for the purposes of our double jeopardy analysis. As explained above,

the government failed to present sufficient evidence to support that conviction.

Our focus is entirely on the government’s use of the conviction for seizure of

Tanner’s car as a predicate felony to support the conviction for using fire during

the commission of a felony under 18 U.S.C. § 844(h).

McRae’s argument fails because Congress clearly intended to punish his

conduct twice. First, using a dangerous weapon was sufficient to make the

seizure of Tanner’s car a felony, and to trigger enhanced punishment. 18 U.S.C.

§ 242. Second, Congress provided that § 844(h)’s ten-year imprisonment for

using fire is “in addition” to punishment for a felony that provides an enhanced

punishment for “use of a deadly or dangerous weapon.” 18 U.S.C. § 844(h).

Third, McRae did, in fact, use a dangerous weapon in seizing the car. The

indictment charged both the use of fire and a dangerous weapon, and McRae

admitted to using both. In his trial testimony, McRae stated that he lit Tanner’s

car on fire and used a gun to shoot out the car’s back glass to assure the car’s

destruction. McRae’s conduct would have been felonious based solely on the use

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of the gun, and the government did not, therefore, exploit the mere use of fire to

form a predicate felony and a conviction under § 844(h). We perceive no

violation of the prohibition on double jeopardy.

Nonetheless, McRae argues that it is unclear whether the jury found that

he used a dangerous weapon because the jury instructions required the jury to

find the use of a dangerous weapon or fire, rather than the use of a dangerous

weapon and fire. This argument lacks merit because McRae testified to using

both fire and a dangerous weapon. In describing how he destroyed Glover’s car,

McRae testified as follows: “I fired one shot into the back rear glass, stood

directly behind the vehicle, fired one shot into the rear glass, at which time the

car began to burn.” Although the jury may have returned a general verdict form

that did not specify its findings, it is fanciful to suggest that the jury did not find

facts that were never in dispute and to which McRae freely admitted. Even

McRae’s appellate brief recited the fact that he used both fire and a gun to

destroy Tanner’s car.

We therefore hold that McRae’s punishment does not violate the

prohibition against double jeopardy, and we affirm his sentence under count

seven of the second superseding indictment.

IV.

We now turn to the government’s challenge to the new trial granted to

Travis McCabe. McCabe was given a new trial after being convicted for

obstruction of a federal investigation, making false statements to the FBI, and

making false statements to a grand jury. The obstructive act McCabe is alleged

to have committed is the creation of a false, second police report, to substitute

for Sergeant Simmons’s authentic first report. The false statements McCabe is

alleged to have made to the FBI are that he assisted Sergeant Simmons in

preparing a police report; that, in assisting Sergeant Simmons, he interviewed

Officer Howard; and that the supposed second report was true and accurate. He

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made the same statements to the grand jury, and also made the alleged false

statement that he did not connect Warren’s shooting and the burning of Tanner’s

car, despite his awareness of both, until he read about the connection between

the events in the newspaper. At trial, the government supported its theory

against McCabe primarily with the testimony of Sergeant Simmons19 and Officer

Howard, both of whom contradicted McCabe’s recollection of the relevant events.

The post-trial discovery of another police report materially identical to the

supposed second report, which Warren claims was given to him by Sergeant

Simmons, persuaded the district court to order a new trial for McCabe. The

government appeals the new trial order.

Upon a criminal defendant’s motion, 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. To obtain a new trial based

on newly-discovered evidence, a defendant must show:

(1) that the evidence is newly discovered and was unknown to

him at the time of trial; (2) that the failure to discover the

evidence was not due to his lack of diligence; (3) that the

evidence is not merely cumulative, but is material; and (4)

that the evidence would probably produce an acquittal.

United States v. Blackthorne, 378 F.3d 449, 452 (5th Cir. 2004) (quoting United

States v. Gresham, 118 F.3d 258, 267 (5th Cir. 1997)). The government disputes

only the second and fourth factors here: McCabe’s diligence and the probability

of an acquittal.

19

Sergeant Simmons testified that, during her initial grand jury testimony, she

admitted that she had written the report shown to her in the grand jury–the “second report,”

which the government later charged McCabe with fabricating. After she left the grand jury

that day, however, she contacted an attorney and subsequently returned to amend her grand

jury testimony, asserting that the report she had been shown was not the report she had

drafted and submitted in December 2005. At trial, however, Sergeant Simmons could not

explain how she came to have in her possession in 2009 the second page of the “second report.”

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We review a district court’s order granting a new trial for abuse of

discretion. United States v. Tarango, 396 F.3d 666, 671 (5th Cir. 2005). As an

appellate court, “we must not revisit evidence, reevaluate witness credibility, or

attempt to reconcile seemingly contradictory evidence. Instead, we must

[determine] whether . . . the district court’s ultimate decision in granting or

denying the motion for a new trial constituted a clear abuse of its discretion.”

Id. at 672 (internal citation omitted).

The government first argues that the district court abused its discretion

because McCabe was not diligent in uncovering the newly-discovered report.

McCabe understood the importance of rounding up any copies of the disputed

police report, and because McCabe knew that Sergeant Simmons had

interviewed Warren for the report, the government argues that he should have

suspected Warren possessed a copy. Yet, McCabe’s attorneys never asked

Warren about the report or requested that Warren produce any documents.

The district court gave due consideration to this argument, and rejected

it based on its own observations of the overall diligence exhibited by McCabe’s

attorneys throughout this case. In hindsight, if McCabe’s attorneys had

requested documents from Warren’s attorneys, the newly-discovered report

might have been available at trial. But diligence does not require perfect

hindsight. In their pretrial investigation of this case, McCabe’s attorneys had

no reason to suspect that another copy of the disputed police report existed.

McCabe’s attorneys attempted to interview Sergeant Simmons before trial,

where they might have inquired about whether she produced multiple copies,

but they never received a response from Simmons’s attorney. Under the

circumstances, it appears that McCabe’s attorneys acted diligently. We cannot

fault them for failing to discover a document that got lost in the shuffle of an

exceedingly complex case, especially where the district court’s order commends

the diligence of their overall efforts on McCabe’s behalf.

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The government next argues that district court abused its discretion

because the newly-discovered report is unlikely to produce an acquittal. An

acquittal is unlikely, the government argues, because the importance of the

newly discovered report depends on the credibility of Warren, whom the

government considers a liar and a felon. The newly-discovered report is only

important if Sergeant Simmons prepared it, and the only evidence that Simmons

prepared it is the post-trial testimony of Warren that he received the report from

Simmons in a private meeting in 2005. If Simmons did not prepare the report,

as she claims she did not, then it is simply another copy of a false report. The

acquittal-producing potential of the report, then, depends largely on Warren’s

credibility.

Although the government acknowledges that this Court does not make

credibility determinations in reviewing orders granting new trials, it urges this

case as an exception. The government makes several arguments as to why an

exception is warranted, but each argument is, in fact, a rather straightforward

credibility attack. We decline the government’s invitation to exceed our role by

re-weighing Warren’s credibility. The district court stated in its order granting

a new trial that it faced the difficult task of weighing the testimony of two

imperfect witnesses: Warren, whom the court had sentenced for a felony, and

Sergeant Simmons, who had admitted to lying to a grand jury. In her initial

testimony before the grand jury, Simmons claimed to have authored what she

now says is a second report, but she recanted that story soon afterward.

Ultimately, with the benefit of live testimony, the court concluded that Warren’s

post-trial testimony, at least, credibly demonstrated that Simmons delivered a

copy of the disputed report to Warren. We will not disturb the court’s careful

balancing of a difficult credibility question.

The government next asks us to put aside the obstruction of justice

conviction, and to consider that an acquittal is unlikely at least with respect to

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No. 11-30345

the false statement convictions because not all of McCabe’s false statements

related to the falsification of a police report. McCabe was also charged with

lying to the FBI and grand jury about other things like, for example, whether he

ever interviewed Officer Howard. The government argues that the existence of

another police report has no bearing on the truth or falsity of these other

statements.

We reject this argument. First, because the alleged false statements were

lumped together in the indictment and the jury instructions, and because the

jury returned a general verdict form, there is no way of knowing on which

statements the convictions are based. Second, the alleged false statements are

mostly interrelated, and are bound together by the government’s allegation that

McCabe prepared a false police report. The newly-discovered police report

supports McCabe’s entire defense, that is, that the supposed second police report

is the authentic report, prepared by Sergeant Simmons and McCabe jointly

under the circumstances described by McCabe.

In sum, the district court did not err in concluding that the failure to

discover the police report in Warren’s possession was not due to McCabe’s lack

of diligence and that the police report would probably produce an acquittal. The

government’s arguments to the contrary are unavailing. We therefore hold that

the district court did not abuse its discretion in granting McCabe a new trial.

V.

In this opinion, we have held that Warren was properly joined with his co-

defendants in the indictment under Rule 8(b) but that the district court abused

its discretion in denying his motion to sever his trial under Rule 14(a). We

therefore VACATE all his convictions and sentences and REMAND for further

proceedings not inconsistent with this opinion.

With respect to McRae, we have held that the government presented

insufficient evidence to convict McRae of denying Glover’s descendants and

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survivors the right of access to courts. We therefore REVERSE and VACATE

his conviction on Count Five of the second superseding indictment. We also have

held that the district court did not plainly err in entering judgment with respect

to McRae’s conviction for depriving Tanner of his right to be free from

unreasonable seizure or with respect to his conviction for obstruction of a federal

investigation. We therefore AFFIRM his convictions on Counts Four and Six of

the second superseding indictment. Finally, we have held that McRae’s

120-month sentence for using fire to commit a felony, which is to run

consecutively with other sentences imposed, does not violate the Fifth

Amendment’s Double Jeopardy Clause. Nonetheless, because we are unsure of

how the district court confected the various sentences as part of the whole, we

VACATE all his sentences and REMAND for further proceedings not

inconsistent with this opinion.

With respect to McCabe, we have held that the district court did not abuse

its discretion in ordering a new trial in the light of newly-discovered evidence.

We therefore AFFIRM the district court’s order vacating McCabe’s convictions

and ordering a new trial.

AFFIRMED in part, REVERSED in part,VACATED in part, and

REMANDED.

59