Appeals from the United States District Court for the Western District of Wisconsin. No 84 CR 39--Barbara B. Crabb, Judge.
Before: CUMMINGS, CUDAHY and EASTERBROOK, Circuit Judges.
The defendants were convicted of conspiracy to purchase marijuana with intent to distribute. They requested a new trial because one of the witnesses at trial, a government agent, had testified falsely about the number of telephone conversations he had had with one of the defendants the morning of the sting operation. The district court denied the motion for a new trial. We affirm.
The four co-defendants in this case, Peter J. Kaufmann, Jan E. Ostermeier, William C. Cummings and Terrell D. Brown,*fn1 were convicted by a jury of conspiracy to purchase marijuana with intent to distribute. Kaufmann was also convicted of using a communications facility in furtherance of the conspiracy. The government agents involved in this case had carried out a "reverse sting" operation in which the agents assumed the role or marijuana suppliers and sought to sell marijuana to the defendants.
At trial the government's principal witness, Agent John Holm of the division of Criminal Investigation of the Wisconsin Department of Justice, testified that on June 15, 1984, the date of the sting operation, he had not spoken to Kaufmann before eleven that morning. After trial the defendants moved to vacate their convictions, or in the alternative for a new trial, because Holm had testified falsely at trial. After a hearing the district court found that Holm's testimony was false. Holm had in fact called Kaufmann three times before 11 a.m. on June 15. The district court, however, explicitly declined to find whether Holm had perjured himself. Presumably it was only considering whether the defendants were entitled to a new trial under Larrison v. United States, 24 F.2d 82 (7th Cir. 1928), which does not require that the false testimony be perjured. The district court found that the defendants had failed to meet the other requirements of Larrison, see infra at 6-7, and thus denied the motion for a new trial.
On appeal we remanded to the district court to determine whether the prosecution's case included perjured testimony and whether the prosecution knew, or should have known, of the perjury under the standard articulated in Napue v. Illinois, 360 U.S. 264, 269, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959). See United States v. Kaufmann, 783 F.2d 708 (7th Cir. 1986). On remand the district court found that Holm did not know that he was testifying falsely about the telephone calls. The district court further found that the prosecution did not know that the testimony was false and that the circumstances were not such that the prosecutor should have known of its falsity. The district court thus reinstated its denial of the motion for a new trial. Now that the appropriate findings are before us, we will address the merits of the defendants' appeal of their convictions. The defendants each make different arguments. Kaufmann argues that the record does not support the district court's conclusion that the prosecutor did not know that Holm's testimony was false. He also argues that the district court's theory of Holm's credibility is flawed. Ostermeier argues that he is entitled to a new trial under Larrison. All of the defendants contend that the district court should have held an evidentiary hearing on remand.
It is within the sound discretion of the district court to decide whether a new trial should be granted on the basis of newly discovered evidence. See United States v. Nero, 733 F.2d 1197, 1202 (7th Cir. 1984). On appeal we only review the district court's decision for an abuse of discretion. Id. The heavy burden placed upon the appellant in this situation has repeatedly been noted by this court:
The party who claims that the trial court erred in denying his motion for a new trial is not likely to be successful. The appellate court properly defers to the view of the trial court, and will affirm unless there has been an error as a matter of law or a clear and manifest abuse of judicial discretion.
Id. (quoting United States v. Davis, 604 F.2d 474, 484 (7th Cir. 1979)).
In his initial brief to this court, Kaufmann argued that he was entitled to a new trial under the standard articulated in Napue. Under the standard a conviction must be set aside if the prosecution's case includes perjured testimony, the prosecution knew, or should have known, of the perjury, and there is any reasonable likelihood that the false testimony could have affected the judgement of the jury. See United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 3382 & n.8, 87 L. Ed. 2d 481 (1985); United States v. Agurs, 427 U.S. 97, 103, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976); Giglio v. United States, 405 U.S. 150, 153-54, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972); Napue v. Illinois, 360 U.S. 264, 269-71, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959); United States v. Jackson, 780 F.2d 1305, 1309 (7th Cir. 1986); United States ex rel. Smith v. Fairman, 769 F.2d 386, 392 (7th Cir. 1985).
In light of the district court's findings on remand, Kaufmann argues that a prosecutor cannot obtain a conviction through the knowing use of false evidence even if the testimony is only mistaken rather than perjured, and that the record does not support the district court's finding that the prosecutor did not know that the testimony was false. Kaufmann argues that the record contains no evidence as to the state of the prosecutor's knowledge of the falsity of Holm's testimony. In the case before us, however, it is reasonable to infer that if Holm did not know of the falsity of his testimony, the prosecutor also did not. Holm's testimony at trial about the phone calls was consistent with his earlier testimony before the grand jury and with his deposition testimony. Kaufmann argues that certain inconsistencies in Holm's testimony ...