Full opinion text
E. GRADY JOLLY, Circuit Judge: 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. 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. 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. 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 flies 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. 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. 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. 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 Ha-bans 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 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 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. 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 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. 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 indictment 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. 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 murder as defined in 18 U.S.C. § 1111, all in violation of 18 U.S.C. § 924(c) and (j). 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. § 924Q). 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 Calloway in handcuffs, sitting on the ground. 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-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 Ha-bans School, and that he made that decision on his own without consulting anyone. He testified that he had seen other dead bodies rotting in the chaotic aftermath of Hurricane Katrina, and that he didn’t want Glover’s body to suffer the same fate. Two weeks later, Glover’s charred remains were recovered and taken to a temporary morgue. A coroner performed an autopsy on the remains in late October 2005, but they were not identified as those of Glover until April 2006. Glover’s family was then able to bury him. 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. 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. 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 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. § 8742. 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 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, 106 S.Ct. 725, 88 L.Ed.2d 814 (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 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, 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, 113 S.Ct. 933, 122 L.Ed.2d 317 (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 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. 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, 113 S.Ct. 933). “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, 113 S.Ct. 933 (citing Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (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. 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 coverups 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’ .... ” United States v. Bieganowski, 313 F.3d 264, 288 (5th Cir.2002) (citing Cortinas, 142 F.3d at 248). 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 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 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. 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 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, 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 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 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. Warren testified that he 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, 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, 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, 113 S.Ct. 933 (citing Richardson, 481 U.S. at 211, 107 S.Ct. 1702); 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 argument that there was no forensic evidence to verify whether the pictures of Glover’s wound 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 unusable 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