Full opinion text
ORDER AND REASONS KURT D. ENGELHARDT, District Judge. Before the Court is the Motion for New Trial (Rec. Doc. 963) originally urged by defendant Arthur Kaufman, and joined in by the other defendants in this matter who were tried and convicted in 2011 (hereinafter referred to as “Defendants” or “the defendants). The government opposes this motion. (Rec. Doc. 1007.) The Court heard oral argument on the defendants’ motion on June 13, 2012 (Rec. Doc. 1020). A detailed recounting of subsequent events is set forth in this Court’s Order and Reasons dated November 26, 2012 (Rec. Doc. 1070). As an expected result of that Order, the Court is in receipt of additional information to which it was not privy at the time of its last Order. With such information and for the reasons stated herein, IT IS ORDERED that Defendants’ motion is GRANTED. For ease of reference, the following sets forth a “Table of Contents” for review of this Order: TABLE OF CONTENTS Page I. INTRODUCTION......................................................549 II. BACKGROUND: PART ONE — MAY 18, 2012 TO NOVEMBER 26, 2012.....552 III. BACKGROUND: PART TWO — NOVEMBER 26, 2012 TO PRESENT.......554 A. Special Attorney to the Attorney General-John Horn’s Assignment.......554 B. Departures from the US AO ... ....................................555 C. The Horn Report of January 25,2013 .................................555 D. The March 29,2013 Supplement to the Horn Report....................557 E. Further Inquiry of the Court, and the May 15, 2013 Meeting.............561 F. Second Supplemental Report of May 20, 2013 ..........................564 G. Third Supplemental Report Dated June 17, 2013........................566 H. Fourth Supplemental Report Dated June 25,2013 ......................566 IV.STATEMENT OF ISSUES..............................................567 A. The Government’s Opposition to Defendants’ Motion....................567 B. Questions Raised...................................................567 V.GOVERNING LAW....................................................568 A. Fundamental Guiding Principles......................................568 B. Laws Governing Conduct of Prosecutors...............................568 C. Law Governing Motions For New Trial................................574 VI.THE MISCONDUCT...................................................578 A. Former USAO Senior Litigation Counsel Sal Perricone..................578 B. “Dipsos”...........................................................583 a. The “Taint Team” Leader........................................583 b. , The Kastigwr Rulings ...........................................586 c. “Dipsos” on Nola.com ...........................................586 C. An On-Line 21st Century “Carnival Atmosphere”.......................588 D. Sworn Testimony of Former First AUSA Jan Mann.....................603 E. Pre-Trial and Trial Concerns ........................................608 1. The Government’s Pre-Trial Timeline.............................608 2. FBI Agent Bezak’s Explanation of the Credibility of NOPD Witnesses....................................................610 3. Perricone’s View of the FBI and the Potential Source of Rule 6(e) Leaks.......................................................610 4. Testimony of Cooperating Government Witnesses, and the Refusal of Defense Witnesses to Testify..........................611 (a) Hunter.....................................................612 (b) Hüls.......................................................612 (c) Barrios ....................................................613 (d) Lehrmann..................................................613 (e) Haynes, Tollefson, and Gore..................................614 VII.ANALYSIS............................................................615 A. Timeliness.........................................................615 B. Due Process.......................................................617 C. Prejudice..........................................................619 a. Government Pressure...........................................619 b. Influence on Jurors.............................................621 c. Potential Influence on Witnesses..................................622 D. Evidentiary Hearing................................................623 E. Disposition.........................................................624 VIII.CONCLUSION ........................................................627 I. INTRODUCTION With a history of unprecedented events and acts, consideration of the defendants’ motion has taken the Court on a legal odyssey unlike any other. With the reíatively recent advent of the age of cyberspace and social media/networking, courts have anticipated a myriad of issues and potential controversies. This Court is unaware of any case, however, wherein prosecutors acting with anonymity used social media to circumvent ethical obligations, professional responsibilities, and even to commit violations of the Code of Federal Regulations. Hence, to the Court’s knowledge, there is no case similar, in nature or scope, to this bizarre and appalling turn of events. From the landfall of Hurricane Katrina on August 29, 2005, the subsequent failure of the levees surrounding the City of New Orleans resulting in massive and severe flooding of the metropolitan area, the exodus/evacuation of hundreds of thousands of people from southeast Louisiana both before and after August 29, 2005; the outbreak of intense and wide-spread civil unrest and the response of the New Orleans Police Department (“NOPD”), including the tragic events on the morning of September 4, 2005, in which two civilians were killed and others injured, some severely, by NOPD gunfire; the aborted prosecution in state court, the United States Department of Justice’s (“DOJ”) active takeover of this case in 2008, followed by this federal indictment on July 12, 2010; the multi-week trial during the summer of 2011, followed by the separate mistrial of severed defendant Dugue in January 2012; the noteworthy sentencing of the defendants to mandatory consecutive minimums; and the later discovery of disturbing online misconduct of the government throughout, the Court has dutifully attempted to negotiate all the twists and turns in order to apply fundamental bedrock principles in achieving the result here. In particular, the Court notes that the issue of prosecutorial misconduct involving at least two high-ranking members of the United States Attorney’s Office for the Eastern District of Louisiana (USAO) has not been dispositively addressed by this Court, or any other, in a case where the defendants went to trial. Although other sections of this Court have encountered the misconduct of improper online posting by these two federal prosecutors in other cases, such issues have heretofore been raised only by defendants who had already entered guilty pleas, admittedly establishing all of the essential elements of the crimes for which they pled guilty and were sentenced. This case, however, involves at least one more posting prosecutor, and postings both significantly higher in quantity, and more egregious and inflammatory in quality, given the tone, timing, and identities of persons posting, than has been seen in prior cases. In considering the present motion, which was filed on May 18, 2012, the Court has continued to receive more and more information albeit in the fashion of slowly peeling layers of an onion. During this time, the Court has remained ever cognizant of multiple factors, including: the sanctity of this jury’s verdict and the undesirability of upsetting it; the consumption of resources by the government and the defendants in preparing to try this matter in 2011; the cost in financial and other resources in staging this trial; the efficient use of judicial resources; the substantial interest in achieving finality; and last, but certainly not least, the heavy emotional toll that the trial, and subsequent proceedings, have taken on the victims and their families, as well as the defendants and their families. Further, the undersigned has spent countless hours considering these factors against the backdrop of the longstanding integrity and respect afforded the United States criminal justice system and courts, and the special role of prosecutors, especially federal prosecutors from the Department of Justice acting in the name of the people of the United States of America. Try as it might to reconcile all of these interests, in light of the facts set forth, the Court is unable to achieve a disposition contrary to the one reached here, and most assuredly does not take such action lightly. Quite simply, in the most general sense, traditional notions and concepts of criminal justice cannot be served by minimizing such misconduct and preserving a verdict under these peculiar circumstances. The Court is, of course, also very cognizant that, on September 4, 2005, two men died, while three others were seriously injured, under tragic circumstances at the hands of some of the defendants herein, and that the state court criminal justice system was corrupted to the prejudice of at least one victim, Lance Madison. Mr. Madison’s riveting testimony — both at trial and at sentencing — is surely not soon forgotten. Indeed, it echoes in this case, making the abuses set forth herein all the more astonishing. This case started as one featuring allegations of brazen abuse of authority, violation of the law, and corruption of the criminal justice system; unfortunately, though the focus has switched from the accused to the accusers, it has continued to be about those very issues. After much reflection, the Court cannot journey as far as it has in this case only to ironically accept grotesque prosecutorial misconduct in the end. For the most part, the Court will attempt herein to simply continue the chronology set forth in its Order and Reasons dated November 26, 2012 (which the Court considers and refers to as “PART ONE” of this saga), although some of the events described herein must necessarily be placed on the existing overall timeline in order to reflect the important context as it relates to this case. Additionally, as an exordium, the Court believes it prudent, for the sake of clarity, to first provide a brief summary of Part One. At this juncture, the most precious commodities are candor and credibility, both of which seem to be in short supply, despite the best efforts of this Court and a couple of federal prosecutors from Georgia. But for the Court’s disposition today, a detailed evidentiary hearing would be certain, and would be the only way to ascertain the entirety of facts surrounding these exploits and uncover the further extent of misdeeds herein. As will be explained, however, the Court does not find taking that likely arduous route to be necessary. In short, despite the many remaining questions that would have great bearing on the subject motion, the Court believes more than sufficient grounds exist warranting the disposition set forth herein. II. BACKGROUND: PART ONE-MAY 18, 2012 TO NOVEMBER 26, 2012 Following their convictions and sentencings on multiple counts, Defendants, on May 18, 2012, filed the instant motion under Rule 33 of the Federal Rules of Criminal Procedure, arguing essentially two grounds. The first ground is that the government allegedly “engaged in a secret public relations campaign” designed to make the NOPD “the household name for corruption,” inflame public opinion against the defendants and others involved with NOPD, establish community acceptance of the government’s version of the facts “before anyone set foot in a courtroom,” urge defendants and others to plead “guilty” as a result, and prejudice the defendants during trial through online activities designed to secure their convictions. The second ground for new trial is that the government, or someone associated with the government, allegedly improperly disclosed, to The Times-Picayune, L.L.C. (“Times-Picayune”) and the Associated Press (“AP”), the government’s theories regarding the defendants’ alleged guilt, the status of plea negotiations, and the upcoming guilty plea of cooperating defendant and former NOPD lieutenant Michael Lohman, all in violation of Rule 6(e) of the Federal Rules of Criminal Procedure. At the time the instant motion was filed, the defendants based the first argument in large part on persistent online posting of “comments” by former USAO Senior Litigation Counsel Sal Perricone, who was exposed, on March 12, 2012, as the Nola.com poster “Henry L. Mencken 1951.” Defendants suspected, but had no proof, that Perricone had posted under other pseudonyms in the past, and had been doing so for a long time. Defendants further alleged that others in the USAO became aware of and accepted Perricone’s activities. Oral argument on Defendants’ motion was held on June 13, 2012. At that time, based upon the government’s representations, including that of Jim Letten, then United States Attorney (“USA”) for the Eastern District of Louisiana, the Court expressed considerable doubt about the merits of the motion. Nonetheless, in the interest of completeness, full disclosure, and seeking satisfaction that what obviously might be a very grave transgression by the government did not occur, the Court ordered the government to pursue an investigation of the leak of the Lohman plea. (Minute Entry, Rec. Doc. 1020; and June 13, 2012 Transcript, p. 44, 1.2-p. 45, 1.24.) The Court further ordered Defendants to set forth what they intended to cover at the evidentiary hearing requested of the Court. (Minute Entry, Rec. Doc. 1020; June 13, 2012 Transcript, pp. 46-47.) Based upon Defendants’ submission, the Court, on July 9, 2012, ordered the government to produce documents relating to any posting activity on the website Nola.com between the dates of February 17, 2010 (one week before the Lohman plea) and March 24, 2012 (approximately ten days after Perricone’s activities were admitted). (Rec. Doc. 1034.) Both the investigation into the Lohman plea leak, and the gathering and production of documents in response to the July 9, 2012 Order, were handled by former First Assistant United States Attorney (“AUSA”) Jan Mann, who also responded to the Court’s inquiries regarding the investigation of Perricone that had been undertaken by the DOJ’s Office of Professional Responsibility (“OPR”). Later, on October 10, 2012, because Perricone had not yet been questioned under oath about his online activities, but during an interview with a local magazine had asserted that in posting he had acted alone with no one else’s knowledge, the Court undertook further questioning of Perricone under oath at a status conference. At the October 10th interview, Perricone admitted that he had used several other online user IDs, including “dramatis personae,” “legaeyusa,” and “campstblue,” but denied using or knowing the real life personas of several other commenters, including “ewe-man.” He also reiterated that he had acted solo (referring to his postings as “my little secret”), and without the knowledge of anyone else at the USAO or DOJ. Perricone was also asked about various posts he made, including some relative to potential non-public grand jury information. Then First AUSA Jan Mann attended the conference on behalf of the government, and occasionally lodged objections on the record to questions posed of Perricone by defense counsel. Additionally, at the conclusion of the meeting, Mann, to the Court’s surprise, professed suspicions that other court personnel might also be posting. Thereafter, in a follow-up letter exchange with the undersigned, Mann stated that, in speaking at the October 10th conference, she “did not intend to suggest that anyone else in particular was posting,” and that “[pjrior to the Perricone incident, [she] was not a follower of Nola. com postings and had no real sense of what was happening there.” (Letter dated October 19, 2012 from former First AUSA Jan Mann to U.S. District Judge Kurt D. Engelhardt.) On Friday, November 2, 2012, however, a lawsuit was filed in Louisiana state court, alleging that Mann, as “eweman,” had in fact posted inappropriate comments on Nola.com from November 2011 to March 2012. Days later, the Court was advised that the allegations were true. At a status conference held on November 7, 2012, attended by all counsel and USA Letten, DOJ lead prosecutor Barbara “Bobbi” Bernstein advised the Court that neither she nor her “trial team” co-counsel were aware of the Perricone or Mann postings until they became public. Nevertheless, considering the gravity of the Perricone postings, and the unfortunate assignment by the government of then First AUSA Jan Mann to submit responsive investigatory information and other materials to the Court, in connection with both the alleged Rule 6(e) violation and the Perricone issue, the Court, expressing its dismay over the already-known troubling government hijinks, ordered the government, on November 26, 2012, to recommence compliance with its prior Orders, including an investigation of the leak of the Lohman plea pursuant to Rule 6(e), and a full and complete report regarding government internet posting activity relative to this case. (Rec. Doc. 1070.) At that time, the Court indicated that defendants were surely correct in their suspicions of prosecutorial misconduct, but concluded that the facts, as of November 2012, still did not yet warrant an evidentiary hearing or the relief requested by the defendants. On the other hand, the Court clearly had sufficient grounds to continue seeking full and candid disclosure by the government of all relevant facts bearing on the defendants’ motion. That being said, recognizing that the drastic action of overturning a jury verdict is not favored, and fully considering such action a last resort, the undersigned sincerely hoped that, with a clear, unequivocal and all-inclusive reliable report, the government could represent with confidence the breadth and ends of any unethical and unprofessional conduct directed towards the prosecution and trial of these defendants. III. BACKGROUND: PART TWO— NOVEMBER 26, 2012 TO PRESENT A. Special Attorney to the Attorney General — John Horn’s Assignment On December 3, 2012, following the Court’s issuance of the November 26, 2012 Order and Reasons (Rec. Doc. 1070), John Horn, the DOJ’s First Assistant United States Attorney for the Northern District of Georgia, was assigned as “Special Attorney to the Attorney General,” pursuant to 28 U.S.C. § 515, to accomplish the tasks set forth in this Court’s previous Orders of June 13, 2012 (Rec. Doc. 1020), July 9, 2012 (Rec. Doc. 1034) and November 26, 2012 (Rec. Doc. 1070, p. 49). Although the Court previously had afforded the government thirty days to properly compile those reports, an extension of an additional thirty days was requested and granted on December 21, 2012 (Rec. Doc. 1076). Mr. Horn’s request for additional time also contained a “Status Report in Partial Compliance,” dated December 19, 2012, which described the commencement of his investigatory efforts. B. Departures from the USAO Shortly after Mr. Horn’s appointment, Jim Letten, United States Attorney for this district, resigned his office on December 11, 2012. Then, on or about December 14, 2012, First AUSA Jan Mann retired from the United States Attorney’s Office; her husband, AUSA Jim Mann, retired the same day. C. The Horn Report of January 25, 2013 On January 25, 2013, Mr. Horn submitted ex parte a “Report in Compliance with Order and Reasons Dated November 26, 2012” (hereinafter referred to as “the Horn Report” or “First Horn Report”). The Horn Report summarizes the government’s compliance with the guidance set forth in In Re: Grand Jury Investigation (Lance), 610 F.2d 202 (5th Cir.1980), including the completion of nearly 200 interviews of various DOJ, FBI, and USAO personnel, as well as the submission of sworn affidavits of certain federal law enforcement personnel, regarding the grand jury proceedings and subsequent guilty plea of cooperating defendant/witness Michael Lohman. The Horn Report also further examines the conduct of Perricone and Jan Mann. Regarding the premature media reports of Lohman’s guilty plea agreement, the First Horn Report indicates that the media sources (“two people familiar with the investigation” and “a source close to the probe”) responsible for the Lohman plea leak have never been identified, and that the publishers (the Times-Picayune and AP) of the information “formally rejected” DOJ’s request for their identities (even in a general exclusionary sense, i.e., by group or category of potential persons). See First Horn Report, Attachment 10 (Letter from AP’s counsel dated December 17, 2012; and letter dated December 17, 2012 from counsel for the Times-Picayune). Nonetheless, the body of evidence set forth in the Horn Report purports to rebut any assumptions under Lance that federal law enforcement personnel were the sources of the information reported. The Horn Report also indicates that, although attempts to negotiate with the Times-Picayune and AP for the disclosure of the identity of the sources (or even the general group from which they might come) failed, the DOJ believes it has sufficiently pursued the information through other sources (the aforementioned DOJ affidavits), and “has concluded that the factors required for the issuance of a subpoena to the reporters have not been met.” Perhaps significantly, however, though it had been reported in the Times-Picayune that a subpoena had issued to discover the identities of at least eleven Nola.com user IDs of interest to Mr. Horn, the First Horn Report does not reference the other user IDs of persons obviously posting curiously similar information and/or opinions about DOJ/USAO business. With regard to the internet postings of comments by Perricone and Jan Mann, the First Horn Report not unexpectedly concludes “that Mr. Perricone’s and Ms. Mann’s conduct reflects no broader effort/campaign within the USAO to provide non-public information about this or other cases through Nola.com or other websites.” (Horn Report, p. 16.) However, Horn did learn that Perricone used (but could not recall) yet another user ID on the Nola.com website, but could not confirm the specific name. Likewise, Mann admitted that she too may have posted a few comments under a different user ID than “eweman” approximately one year before her first post as “eweman” (which would also be about six months before the start of this trial in June 2011). Nevertheless, although she reportedly could not recall that particular user ID, she assured the government investigators that those comments did not relate to DOJ matters. Both Jan Mann and Jim Mann declined to provide affidavits, although both agreed to be and were interviewed in December 2012. Aside from those who used the internet to post comments concerning only non-DOJ matters, Horn also uncovered two other law enforcement personnel who posted about this case: (1) “the first employee, from the Civil Rights Division and who had first-hand knowledge of the Danziger Bridge case but was not a member of the prosecution team, ...” posted six comments under the pseudonym “Dipsos” over the course of four days of the Danziger Bridge trial in 2011; and (2) [DOJ agency employee “A”] in New Orleans who was not involved in the Danziger Bridge or Glover investigations ...” Neither law enforcement employee was named or further identified in the First Horn Report. Though the first was described as only an “employee” in the Civil Rights Division of the DOJ in Washington, D.C., the First Horn Report excused the posted comments by characterizing them as not “inflammatory, critical or prejudicial,” and not containing grand jury or non-public information. As to the unnamed DOJ agency employee “A,” the First Horn Report identifies only two (out of over 100) comments relating to this matter, both of which were made in connection with the mistrial declared in the separate Dugue trial in January 2012. Again, the First Horn Report concludes that these comments were not “inflammatory, critical, or prejudicial, or otherwise contained grand jury non-public information.” Finally, the First Horn Report also identified and produced several other previously undisclosed email communications that the Court ordered produced back on July 9, 2012 (Rec. Doc. 1034). D. The March 29, 2013 Supplement to the Horn Report After carefully reviewing the January 25, 2013 Horn Report and determining additional information was needed, the Court, on February 22, 2013, propounded thirteen questions/requests in response. These include the following: (1) The absence of sworn affidavits from Jan Mann (hereinafter “Mann”) and Jim Mann is problematic. Both need to submit sworn affidavits regarding all pertinent matters (including those several in your report, as well as those outlined here), or be questioned under oath in the presence of a court reporter, in the same manner as Sal Perricone (hereinafter “Perricone”). (2) How did the employee from the Civil Rights Division who posted under the pseudonym “Dipsos” during the Danziger Bridge trial obtain “first-hand knowledge of the case” without being a member of the prosecution team? What position within the division did this person hold at the pertinent time? What duties and job responsibilities did he/she have? Who are his/her superiors and underlings? Has he or she been asked why information was sought from “bloggers” rather than a member of the trial team or their support staff? (See January 15, 2013 Report by John Horn (“Report”), p. 20.) (3) When interviewed, why were FBI personnel not questioned about posting comments on websites, [omitted by the Court]. (See Report, pp. 7-8 and 20-21.) Were any FBI personnel asked whether he or she had knowledge of other federal employees (Assistant U.S. Attorneys, other FBI personnel, etc.) posting on public websites? (4) The Report indicates that Perricone used another user-id on nola.com similar to “fed up” and that a DOJ review of those comments for non-public information was ongoing at the time of the Report’s submission. (See Report, p. 17, n. 3.) What information has been obtained since then? If any DOJ/USAO matters are referenced in any of the posts, please provide the Court with a complete copy of them. (5) The Report indicates that Mann may have posted under another user-id prior to posting as “eweman” but, at the time of her interview, she could not recall the user-id in question. Has an additional inquiry regarding that user-id been made since the submission of your report? If the user-id and the content of the posts has been determined, what was the nature of the posts, if they did not concern DOJ/USAO matters? If any DOJ/USAO matters are referenced in any additional posts by Mann, please provide the Court with a complete copy of them. (See Report, p. 17, n. 4.) * * * (7) A February 1, 2013 article by Gordon Russell, a reporter for Nola. com/The Times-Picayune, states that “authorities sent the NOLA Media Group a subpoena asking for information about commenters on NOLA.com.” (The article presently can be found at http://www.nola.com/crime/index.ssfl 2013/02/deadline_passes_quietlyJfor_in. html.) Is Mr. Russell correct? Is this subpoena (or its results) referenced in the Report? The article additionally indicates that “a catalog of comments and the associated IP addresses” of about 11 other commenters was sought by “the feds” from (but not provided by) the NOLA Media Group. Is this correct? Are those efforts reflected in the report? What was the intended purpose of the request(s)? Why these 11 commenters? (8) Footnote 30 of the Court’s November 26, 2012 Order and Reasons states: It would seem obvious that, upon news of Perricone’s activities, among the first questions to be answered were: (1) Is anyone else in the U.S. Attorney’s Office posting inappropriate and/or compromising online comments? and (2) Did anyone in the U.S. Attorney’s Office know or suspect that Perricone was posting prior to his admission in March 2012? (Even if OPR asked the first question in March, one shudders to imagine what answer was given by First AUSA Mann. Either she confessed to such activity, or falsely denied it.) Regardless, had the DOJ proactively and independently investigated and carefully analyzed the online comments in March 2012 as did the expert who uncovered Perricone and Mann, the answer to the first question would have been known months ago. Regarding this, why were Mann’s postings as “eweman” not discovered prior to late October/early November 2012? And what have you been able to ascertain regarding previous efforts, if any, by OPR (or the EDLA U.S. Attorney’s office (hereinafter referred to as “USAO”)) to determine whether anyone in the USAO in addition to Perricone was improperly posting online? (9) What efforts, if any, have been made as to whether Mann, Perricone, or anyone else in the USAO, has made improper public comments regarding DOJ/USAO matters via any website, blogs, newspapers, etc., other than nola. com,? If such an inquiry has made, what information has been gathered? (10) The Report addresses the question of whether anyone else within the U.S. Attorney’s office was posting online, but does not address the question of who within the office knew about Perricone’s and/or Mann’s postings, as indicated in Footnote 30 of the Court’s November 26, 2012 Order and Reasons. What inquiry, if any, has been made relative to this question? - For instance, on November 7, 2012, Michael Magner (“Magner”) testified that he previously had told at least three supervisory personnel, and others, within the USAO that he suspected Perricone was posting online about DOJ/USAO matters. Have the referenced persons, including Greg Kennedy, Maurice Landrieu, and Matt Coman, as well as Carter Guice and the others identified, been interviewed under oath, or otherwise, regarding Magner’s assertions? If so, what information was obtained? Please provide a complete copy of any pertinent findings resulting from any such inquiries. On March 29, 2013, Mr. Horn and Ms. Alexander responded to these questions. The Supplemental March 29, 2013 Report (herein after, the “First Supplemental Report”) disclosed that both former First AUSA Jan Mann and former AUSA Jim Mann had been interviewed under oath in the presence of a court reporter on November 15, 2012, by OPR attorneys. Thereafter, in December 2012, both were interviewed by Mr. Horn and Ms. Alexander, who were accompanied by a special agent with the DOJ Office of Inspector General (OIG). On that occasion, neither were placed under oath, and both, according to the First Supplemental Report, declined to sign an affidavit containing the answers given. Both reiterated their denial of being the source of any unauthorized release of information in connection with the Rule 6(e) issue. The March 29, 2013 First Supplemental Report still conspicuously did not name the Civil Rights Division employee who posted as “Dipsos,” an omission the Court found truly odd, and which further peaked its curiosity, especially given that the First Supplemental Report did further disclose that this “employee” actually is an attorney, who had gained first-hand knowledge of this case “pursuant only to her review of investigative materials and not by participating in the investigation or on the prosecution team.” (First Supplemental Report, p. 3.) The First Supplemental Report then explained that: the attorney was walled off from the prosecution team and was prohibited from having any substantive discussion about the investigation with any member of the prosecution team or any supervisor over the prosecution team. The attorney thus discussed the Garrity review with the team and passed along evidence that had been reviewed and cleared for use by the prosecution team. The attorney is not a supervisor, and the attorney’s direct supervisor had no involvement in the case except to oversee the Garrity work. The attorney does not supervise others. The attorney said under oath that the attorney was in Washington [D.C.] during the trial and followed the progress of the trial in the Times-Picayune because the prosecution team was busy and there was not a good flow of information back about the trial events. Id. In further response to the Court’s February 22, 2013 queries, Mr. Horn reported that, in December 2012, counsel for the New Orleans FBI office “asked all employees in that office if they had engaged in any online posting activity relating to any federal or state criminal investigations.” (First Supplemental Report, p. 4.) In addition, the First Supplement Report reiterated that Perricone did not recall the specific user ID he used that was similar to “fed up,” though a search indicated six comments posted under this particular user ID (“fed up”) occurring from October 12, 2009 to October 20, 2009, did bear some semblance to Perricone’s writing style and content. But according to the First Supplemental Report, none of the comments relate to legal matters or cases. The First Supplemental Report also states that, although former First AUSA Jan Mann could not recall her prior user ID, she thought it possible that, approximately one year prior to registering as “eweman,” she posted one or two comments in a single day about Louisiana Attorney General Buddy Caldwell in response to an article. Again, however, she had assured investigators that she did not post about DOJ matters using her unknown prior user ID. In response to the Court’s Question No. 7, the First Supplemental Report further explains that the government deferred its request [to media outlets] for information associated with the other eleven referenced user IDs “until such time that more specific evidence of misconduct was developed.” The First Supplemental Report additionally states that, given other investigatory work, including obtaining affidavits from all USAO personnel, “we believe that the results [of the subpoena] yield little probative evidence when compared with the other evidence summarized in the Report.” (First Supplemental Report, p. 8.) Of significance, with regard to the Court’s Question No. 8, the First Supplemental Horn Report admits that OPR did not initially inquire as to whether any other USAO employees had posted online comments, but asserts OPR did ask EDLA attorneys “to provide all information they possessed relevant to its inquiry regarding Perricone’s postings.” According to the First Supplemental Report, at that time “no USAO employee, including Jan Mann, volunteered that he or she had posted online comments in response to that question.” (First Supplemental Report, p. 9.) The First Supplemental Report indicates that only later in November 2012, when it initiated its investigation into former First AUSA Mann’s postings, did OPR specifically inquire as to whether any other employee had posted comments about DOJ matters on Nola.com or any other internet website. In responding to the Court’s Question No. 10, the First Supplemental Report deferred to the OPR’s continuing investigation, relative to whether anyone in the USAO knew about Perricone’s and/or Jan Mann’s postings. Nonetheless, it reiterated the government’s belief that neither Perricone nor Mann posted confidential information about this case; that no USAO personnel other than Perricone and Mann posted comments online about DOJ matters; and yet again denied that the comments posted by Perricone and Mann were part of a broader or collusive effort within the USAO, or federal law enforcement, to provide non-public information about this case, or any other cases, through Nola.com or any other websites. On April 16, 2013, the Court held a status conference at the request of defense counsel, wherein an oral update of a general nature was provided. Defense counsel were not provided any of the Horn Reports or documents, or any substantive information based on such material. E. Further Inquiry of the Court, and the May 15, 2013 Meeting On Monday, April 22, 2013, the undersigned contacted Mr. Horn via telephone to thank him for his prior efforts, but to also advise that a further request for specific documentation and materials would be forthcoming from the Court. During that conversation, the Court expressed a concern that the two previous Horn Reports seemed to not only contain appropriate factual information, but also further verbiage that either was anodyne in nature, or expressed advocation in the form of arguably debatable mitigating commentary. The undersigned further noted that some provisions of the Horn Reports seemed to incite obvious further inquiry or investigation, and thus follow up by the Court with Mr. Horn. That same day, the Court requested, via email, eight additional items for in-camera review, including: 1. Full and complete transcripts, including any exhibits, of the interviews of former AUSA’s Jan Mann and Jim Mann taken before a court reporter on November 15, 2012. 2. All notes (handwritten or otherwise) no matter how recorded, electronic recordings, transcripts, or other materials memorializing (a) the “unsworn interview” of former AUSA Jan Mann on August 8, 2012; and (b) the “supplemental interview(s)” of former AUSA’s Jim Mann and Jan Mann that occurred in December 2012. 3. The full name and title of (a) the Civil Rights Division employee referenced on Page 3 of the March 29, 2013 Supplemental Report; and (b) the direct supervisor referenced in the first full paragraph of Page 3 of the March 29, 2013 Supplemental Report. 4. The full name and title of [DOJ agency employee “A”] who is under administrative investigation and referenced on Pages 20-21 of the January 25, 2013 Report and Page 4 of the March 29, 2013 Supplemental Report. 6. The full name and title of the .....FBI agent referenced on Page 4 of the March 29, 2013 Supplemental Report regarding former AUSA Mike Magner’s statement to him. 7. The full name and title of the.... FBI agent referenced on Page 6 of the March 29 Supplemental Report (regarding Question No. 6). At that same time, the undersigned propounded ten more questions, including these: 1. Before the Court rules on the pending motion for new trial and motion to dismiss filed by Defendant Dugue (Rec. Docs. 963 and 1079 (sealed)), the Court might require former AUSA Jan Mann to answer questions under oath, or sign a sworn statement or affidavit that provides clear, comprehensive and unequivocal information regarding the entirety of the Court’s inquiry in this matter, as well as her own conduct relative to it. This will, to some extent, depend on what was covered on November 15, 2012, as set forth in that transcript. Please state the legal basis given for her decision to decline to sign an affidavit, as described on Page 2 of the March 29, 2013 Supplemental Report. 2. With regard to Question No. 4, and the response thereto on Page 5 of the March 29, 2013 Supplemental Report, has former AUSA Perricone been asked about the user name “martyfed” and/or “camp?” Has the DOJ reviewed any comments from either of these user ids? 3. Has former AUSA Jan Mann been questioned about the user id “bowatch?” Has the DOJ attempted to review and analyze comments posted by the user id “bowatch?” 4. Is the Court to understand, with certainty, that the DOJ does not intend to further pursue the subpoena referenced in Question No. 7 (Page 7 of the March 29, 2013 Supplemental Report)? 5. Page 8 of the March 29, 2013 Supplemental Report states that “DOJ’s own forensic evidence identified any USAO personnel who posted comments on Nola.com using the USAO’s internet portals during 2012.” The last paragraph of Page 21 of the January 25, 2013 Report appears to indicate that such evidence was not obtained for 2010 and 2011 (prior to December 19, 2011) because it was impossible to do so. Is that correct? If not, please explain why the same evidence was not obtained for pertinent time periods prior to December 19, 2011. 6. Page 9 of the March 29, 2013 Supplemental Report, in response to Question No. 8, provides information regarding OPR’s previous efforts, following former AUSA Perrieone’s March 2012 admission, to determine whether anyone else in the USAO was posting anonymous comments about DOJ matters, but not any independent efforts by the USAO. What have you been able to ascertain regarding the USAO’s own past efforts, if any, to determine whether anyone in the USAO was posting anonymous comments about DOJ matters? 8.On Pages 11-12 of the March 29, 2013 Supplemental Report, you state that you did not understand the Court’s Order and Reasons to encompass Question No. 10 of the Court’s February 22, 2013 email inquiry. The Court believes the question to be well within the scope of issues raised in both the motion for new trial (and the subsequent Dugue motion to dismiss). In any event, the Court understands that this question will be answered fully, completely, and comprehensively in the OPR report. Please advise if this is inaccurate. 9. Although Page 16 of the March 29, 2013 Supplemental Report indicates that the process of investigating and generating the OPR report “may be lengthy”, is there any estimate as to when that report will be completed, including the time delays for any challenges to OPR’s findings? Additionally, please identify and provide contact information for the persons, including any supervisory personnel, who are conducting the OPR investigation and/or are responsible for the report. 10. Please provide the names and title of all persons, as well a short description of their respective roles, participating in the preparation, including drafting, editing, approving, and/or supervising, of your reports and submissions to the Court. On Wednesday, May 1, 2013, Mr. Horn and Ms. Alexander contacted the Court to request an in-chambers meeting, attended by a court reporter, to discuss their response to the April 22, 2013 queries. At the meeting on May 15, 2013, Mr. Horn and Ms. Alexander delivered some of the requested materials to the Court, with an explanation/clarification of the content and their attempts to gather information in response to the Court’s request. During the meeting, Mr. Horn also again raised the issue of the review of his reports by others in the DOJ. Mr. Horn assured the Court that, although drafts of each report were shown to various other DOJ/government personnel (including the prosecution trial team) to confirm accuracy, “Charysse and I hold the drafting authority for the documents that we submitted to the Court. We are the drafters of the language in it, of the factual findings, and the information that is summarized is what we have concluded and what our observations are.” (May 15, 2013 Transcript, p. 20.) Mr. Horn additionally confirmed that “drafts were shared with our supervisors in the D[eputy] Attorney] G[eneral]’s office,” but that, “[A]s far as any suggestions that were given by anyone other than anyone in the DAG’s office, Charysse and I had the final authority over what content and what suggestions were made.” Id. While accepting Mr. Horn’s assertion, the Court nonetheless again expressed its concern and objection to anyone editing his reports to either change or delete facts that have been found, or changing accurate information that was originally included, or adding verbiage in the nature of advocacy to mitigate what findings had been made. Id. at 26-27. In response, Mr. Horn stated forthrightly: “There’s not been anything that anybody within the department [DOJ] has asked us to change in terms of correcting a fact or a representation that we’ve made in our report that has not been based on the intent to make it more accurate, ...” Id. at 28. Mr. Horn continued: I think I can address what your concern is by saying that what Charysse and I have put into our submissions is our work product, it’s our assessments. There may have been — there may have been suggestions, and there may have been clarifications offered; but in terms of the trial team, in terms of the U.S. Attorney’s Office here, suggestions that they made were subject to our final approval and authority and drafting. So all of that contribution would be filtered through Charysse and me and our assessment of the record, the evidence, the materials that we reviewed, the interviews that we’ve conducted, and subject to the oversight and the final authority of the DAG’s office, and that would be people who had no, I think, involvement in the Danziger Bridge matter. We’re talking about, we were reporting to, at one point, the chief of staff to the Deputy Attorney General, and then now to, who I mentioned on the phone, Stuart Goldberg, who is the Principal Associate Deputy Attorney General. So there were certainly suggestions and comments made along the lines that I think a supervisor has an appropriate role to make in saying, “Are you looking at this? Are you looking at that?” But there has never been anything that was changed factually, or an assessment that we’ve made that did not reflect Charysse and my judgment and assessment and determination about what happened or whether that representation is appropriate and accurate to be in the report. Id. at 34-35. During the May 15, 2013 meeting, the undersigned was told orally the identity of “Dipsos” by name for the first time. As will be discussed, it was a rather familiar one. F. Second Supplemental Report of May 20, 2013 In further response to the Court’s April 22, 2013 written inquiry, and as discussed at the May 15, 2013 conference, Mr. Horn and Ms. Alexander provided to the undersigned much of the materials requested, including transcripts of the interviews conducted by OPR, and related documents. Then, on May 20, 2013, Mr. Horn delivered his Second Supplemental Report responding to the questions posed, and the rest of the materials sought. In that report, Mr. Horn indicated that Jan Mann was advised, in December 2012, that “she could answer all the [10] questions in the affidavit [previously utilized by OPR] or complete another form of the affidavit [containing only 8 questions] that omitted [the 2] questions about the OPR survey.” After consulting with counsel, she agreed to answer the questions in the ten-question affidavit relating to the alleged disclosures. In so doing, however, Jan Mann again declined to submit an affidavit, but agreed to an interview “in the telephonic presence of an OIG Special Agent.” Mr. Horn reported that Jan Mann’s attorney “provided no legal basis for her decision not to sign the affidavit.” (Second Supplemental Report, p. 2.) Mr. Horn also indicated his belief that the questions in the affidavit had been orally covered during the sworn November 15, 2012 interview of Jan Mann by OPR attorneys. To the contrary, however, in the DOJ’s “Memorandum Of Investigation,” reflecting the results of the Horn and Alexander interview of Jan Mann on December 21, 2012, Jan Mann was again asked only questions one through eight from the original ten-question affidavit presented by OPR during the summer of 2012. According to the Memorandum Of Investigation: “Mann was not asked questions nine or ten, because her attorney had previously advised Horn that Mann would not answer those questions. Mann declined to swear to the statement.” The Second Supplemental Report also revealed that, through his counsel, Perricone denied ever posting comments under the user IDs “martyfed” or “camp;” whereas through her counsel, Jan Mann similarly denied posting comments under the user ID “bowatch.” The Second Supplemental Report additionally confirmed that DOJ does not intend to pursue the subpoena it issued in January 2013 (relating to the eleven user IDs) to the NOLA Media Group, in light of its collection of affidavits. The DOJ concluded that pursuing the subpoena “would yield little additional probative evidence.” (Second Supplemental Report, p. 5.) In a truly disappointing and unsettling crucial development, the Second Supplemental Report also indicates that DOJ could not forensieally recover computer data evidence from the USAO’s internet portals for years 2010 and 2011 (prior to December 19, 2011) because it “did not retain data for the period before that.” Id. Thus, critical information regarding further prosecutorial misconduct in the months before and during this trial seems forever unavailable. The Second Supplemental Report then indicates that, with one important exception (discussed infra at pp. 88-95), no evidence was found that USAO management had information about any other posters (besides Perricone) before November 2012, when the state court civil lawsuit against First AUSA Jan Mann was filed. Furthermore, the USAO reportedly held two staff meetings, led by former USA Jim Letten, in March 2012, shortly after the Perricone activity became known, wherein he urged all in attendance to advise him promptly if they had any information of like nature that should be disclosed before he addressed Perricone’s conduct with the media. No one volunteered during either meeting that they had posted online comments. The Second Supplemental Report further states that OPR will make its final report available for the Court’s review when it is completed, but adds: “... .it is difficult to predict with certainty the time at which OPR’s final report will be available for disclosure to the court.” (Second Supplemental Report, p. 7.) An expected time line of legal delays was provided, but suffice it to say, the Court does not anticipate the OPR final report to be forthcoming for many months after the date of this Order. Finally, in further response to the Court’s inquiry regarding DOJ persons participating in the preparation, including drafting, editing, approving, and/or supervising the Horn Reports to the Court, the Second Supplemental Report states: “... we have acted under the supervision of Deputy Attorney General James Cole, initially through former Associate Deputy Attorney General Scott Schools and presently through Principal Associate Deputy Attorney General Stuart M. Goldberg. As described more fully below, at all times the undersigned have held the responsibility for conducting our investigation and preparing all submissions to the Court in response to the November Order, subject to the editing and final approval of the above supervisors. We have been given the authority to independently conduct this investigation and have not been restricted in pursuing leads or information. Similarly, we have not been restricted in reporting information in our submissions that we concluded to be appropriate.” (Second Supplemental Report, pp. 8-9.) G. Third Supplemental Report Dated June 17, 2013 The Court reviewed the material delivered by Mr. Horn and Ms. Alexander on May 15 and 20, 2013, and thereafter asked seven more questions in the nature of clarification, none of which was of a substantive nature. A Third Supplemental Report was filed by Mr. Horn, on June 17, 2013, in response to the Court’s inquiries. H. Fourth Supplemental Report Dated June 25, 2013 As a matter of even further follow-up, the Court made two additional requests of Mr. Horn on June 18, 2013, to which Mr. Horn responded via a Fourth Supplemental Report dated June 25, 2013. The first of those questions related to the interview of Jan Mann; the second related to the DOJ agency employee “A.” Then, on Friday, July 26, 2013, the Court requested the transcript or recording of the December 20, 2012, OIG interview of “Dipsos,” which recording was received on July 31, 2013. As of that date, July 31, 2013, with the body of information gathered by Mr. Horn and Ms. Alexander, along with other information received and confirmed during this time period, the Court was strongly inclined to hold an in-depth evidentiary hearing, as originally requested by defendants, given that their allegations, based then on very few known facts, deductive reasoning, and supposition, had clearly blossomed into a series of newly-discovered facts and admissions, unanswered questions, additional apostasies, and a fetor extending far beyond the simple disconcerting notion of a single rogue prosecutor known to counsel and the Court at the hearing on June 13, 2012. But, with these admissions, and confirmed facts reported and verified sufficient to tip this matter toward disposition, the Court is able and instead finds it more appropriate to simply rule on defendants’ motion now, for the reasons stated. IV. STATEMENT OF ISSUES A. The Government’s Opposition to Defendants’ Motion In its original opposition memorandum (Rec. Doc. 1007), filed on June 5, 2012, the government staked out two general arguments: (1) the defendants’ motion is untimely and must be dismissed without consideration of its merits; and (2) the defendants’ motion should be denied because the defendants have failed to demonstrate a violation of their rights to due process. (Rec. Doc. 1007, p. 3.) B. Questions Raised Generally speaking, as reflected in the government’s opposition memorandum, the Court is faced with a motion for new trial under Rule 33. This particular new trial request, however, unlike most, poses many interesting questions, some groundbreaking: (1) Initially, as raised by DOJ, was the defendants’ motion timely filed when some of the government’s conduct was not discovered until months later, and much of it is being disclosed to defense counsel for the first time in this Order? (2) Did the government violate the Code of Federal Regulations? (3) Did the government attorneys violate the other Rules of Professional Responsibility and Local Court Rules set forth herein? (4) Can the government do indirectly that which it is strictly prohibited from .doing directly? (5) Can the government do in cyberspace, with anonymity, that which it is strictly prohibited from doing otherwise? (6) Because these posts by government attorneys were made anonymously (or under a fake name), should the Court overlook and excuse the fact that they were made by government prosecutors and employees of DOJ? (7) Was Rule 6(e) violated? (8) If Rule 6(e) was violated, by whom? (9) Are the defendants entitled to an evidentiary hearing on any or all of these issues? (10) Under these extraordinary circumstances, are the defendants required to show prejudice? (11) If so, have the defendants shown sufficient prejudice? The Court again points out that a search of existing case law does not reveal that factually similar circumstances have occurred elsewhere in this nation (which is a relief, in a way) for prior court treatment. This is not entirely surprising, given that social media and internet posting are relatively new phenomena, and the minatory nature of the conduct occurring both before and during this high stakes trial. Any precedential discussion of them in the jurisprudence, however, would have been helpful. Nonetheless, with certain irrefragable facts before it juxtaposed against a number of unanswered material questions, the Court believes this matter can be disposed of at this time based upon longstanding fundamental principles of due process. V. GOVERNING LAW A. Fundamental Guiding Principles “[F]air play ... is the essence of due process.” Galvan v. Press, 347 U.S. 522, 530, 74 S.Ct. 737, 98 L.Ed. 911 (1954). Such fair play includes “the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.” Spano v. New York, 360 U.S. 315, 320-21, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959). This deep-rooted feeling extends even deeper where prosecutors are concerned, given their status as officers of the court bound to special rules of professional conduct. See, e.g., La. Rules of Professional Conduct, Rule 3.8 (Special Responsibilities of a Prosecutor). Addressing the special obligations owed by federal prosecutors, in United States v. Lopez-Avila, 678 F.3d 955 (9th Cir.2012), the Ninth Circuit Court of Appeals recently explained: The Department of Justice has an obligation to its lawyers and to the public to prevent prosecutorial misconduct. Prosecutors, as servants of the law, are subject to constraints and responsibilities that do not apply to other lawyers; they must serve truth and justice first. United States v. Kojayan, 8 F.3d 1315, 1323 (9th Cir.1993). Their job is not just to win, but to win fairly, staying within the rules. Berger, 295 U.S. at 88, 55 S.Ct. 629. When a prosecutor steps over the boundaries of proper conduct and into unethical territory, the government has a duty to own up to it and to give assurances that it will not happen again. Id. at 964-65. Having found prosecutorial misconduct committed by one AUSA, the Court of Appeals remanded the case to the district court to consider “two different courses of action that would deter future misconduct like this since ‘quite as important as assuring a fair trial ... is assuring that the circumstances that gave rise to the misconduct won’t be repeated in other cases.’ Kojayan, 8 F.3d at 1324.” Lopez-Avila, 678 F.3d at 965-66. The two remedial options set forth by the Ninth Circuit are (1) retrial, or dismissal with prejudice, pursuant to the district court’s supervisory powers over the attorneys who practice before it, and (2) discipline of the prosecutors) directly pursuant to a show cause order. Lopez-Avila, 678 F.3d at 966. The Ninth Circuit finally noted, as is the case herein, that the DOJ Office of Professional Responsibility (OPR) is required to review the conduct of the DOJ attorney involved. B. Laws Governing Conduct of Prosecutors The conduct of prosecutors and other personnel of the DOJ is governed in several respects, the most significant here being 28 C.F.R. § 50.2. That provision of the Code of Federal Regulations states, in pertinent part: § 50.2 Release of information by personnel of the Department of Justice relating to criminal and civil proceedings. (a) General. (2)While the release of information for the purpose of influencing a trial is, of course, always improper, there are valid reasons for making available to the public information about the administration of the law. The task of striking a fair balance between the protection of individuals accused of crime or involved in civil proceedings with the Government and public understandings of the problems of controlling crime and administering government depends largely on the exercise of sound judgment by those responsible for administering the law and by representatives of the press and other media. (b) Guidelines to criminal actions, (1) These guidelines shall apply to the release of information to news media from the time a person is the subject of a criminal investigation until any proceeding resulting from such an investigation has been terminated by trial or otherwise. (2) At no time shall personnel of the Department of Justice furnish any statement or information for the purpose of influencing the outcome of a defendant’s trial, nor shall personnel of the Department furnish any statement or information, which could reasonably be expected to be disseminated by means of public communication, if such a statement or information may reasonably be expected to influence the outcome of a pending or future trial. (3) Personnel of the Department of Justice, subject to specific limitations imposed by law or court rule or order, may make public the following information: (i) The defendant’s name, age, residence, employment, marital status, and similar background information. (ii) The substance or text of the charge, such as a complaint, indictment, or information. (iii) The identity of the