the most notorious malefactors in Chicago history, Hogan faced a substantial dilemma upon learning of post-incarceration misconduct on the part of his star witnesses. Hogan recognized that the information he possessed, if disclosed, could seriously jeopardize his ability to return the indictment he had arduously labored to craft. See H151 ("[Such information] could have impacted on our ability to return the indictment at all. If somebody had said to me that the MCC had made a determination that two of your major witnesses have been using drugs or have used drugs, I would question whether or not those persons were reliable, whether I could return such a hugh indictment that was crafted in large part around their testimony, or their expected testimony."). Fully cognizant of the perils involved, Hogan chose to embrace Evans and Harris and, to avoid destroying the case he had struggled to develop, Hogan attempted to protect what little credibility they possessed going into the prosecution by ignoring their post-incarceration drug use.
Although Hogan assumed the decision not to disclose the various pieces of information that indicated the Evans and Harris continued to use illegal drugs post-incarceration, he is not the only blameworthy person in this affair. Other members of the United States Attorney's Office, including then First AUSA Raphaelson,
possessed similar information, yet did not disclose such information to any defense attorney associated with the various El Rukn trials. Additionally, Hogan's conduct was further exacerbated by the lack of supervision given to him.
Before turning to the legal issues surrounding Hogan's handling of this case, we are compelled to note that the transgressions detailed in this opinion are atypical of Hogan's career as a prosecutor. As manifested by his past accomplishments in over a decade of government service, Hogan is no doubt a bright, talented and dedicated individual. It is also evident that the course of conduct displayed throughout the El Rukn prosecution did not stem from malice, but rather arose from his well meant, but misguided, sense of justice. Of course, these factors cannot justify or excuse his present behavior. They do, however, add to the tragedy of this case and the anguish the court endures in making its findings.
VI. Knowing Use of Perjured Testimony
Implicit in any dignified concept of due process, and well rooted in American jurisprudence, stands the principle that a conviction obtained through use of false evidence or testimony, known to be such by representatives of the prosecution, must be set aside in favor of a new trial. See Miller v. Pate, 386 U.S. 1, 6-7, 87 S. Ct. 785, 788, 17 L. Ed. 2d 690 (1967); Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 1177, 3 L. Ed. 2d 1217 (1959); Mesarosh v. United States, 352 U.S. 1, 9, 77 S. Ct. 1, 5, 1 L. Ed. 2d 1 (1956); Mooney v. Holohan, 294 U.S. 103, 112, 55 S. Ct. 340, 342, 79 L. Ed. 791 (1935). Further, this fundamental tenet "does not cease to apply merely because the false testimony goes only to the credibility of a witness." Napue, 360 U.S. at 269, 79 S. Ct. at 1177. Indeed, "the jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend." Id. To be entitled to a new trial, defendants shoulder the burden of establishing that: (1) the prosecution's case included perjured testimony; (2) the prosecution knew, or should have known, of the perjury; and (3) there is any likelihood that the false testimony could have affected the judgment of the jury. See United States v. Adebayo, 985 F.2d 1333, 1341 (7th Cir.), cert. denied, 113 S. Ct. 2947, 124 L. Ed. 2d 695 (1993); United States v. Guadagno, 970 F.2d 214, 220 (7th Cir. 1992); United States v. Verser, 916 F.2d 1268, 1271 (7th Cir. 1990); United States v. Douglas, 874 F.2d 1145, 1159 (7th Cir.), cert. denied, 493 U.S. 841, 110 S. Ct. 126, 107 L. Ed. 2d 87 (1989); United States v. Kaufmann, 803 F.2d 289, 291 (7th Cir. 1986).
While our initial focus centered upon Trial I testimony concerning post-incarceration drug use and government conferred benefits, a number of other areas of potential perjury were highlighted during the post-trial hearing. Accordingly, we address seriately the elements of a claim of knowing use of perjured testimony as they relate to all claims of false testimony addressed in the post-trial hearing before this court.
A. Identification of Perjured Testimony
At the outset, defendants bear the burden of establishing that the prosecution's case included perjured testimony. We observe that not every testimonial inconsistency that goes uncorrected by the government establishes a constitutional violation. Verser, 916 F.2d at 1271; Anderson v. United States, 403 F.2d 451, 454 (7th Cir. 1968), cert. denied. 394 U.S. 903, 89 S. Ct. 1009, 22 L. Ed. 2d 215 (1969). Defendants must demonstrate more than mere inconsistencies, somewhat misleading testimony or testimony that is not necessarily true. Guadagno, 970 F.2d at 220; Carey v. Duckworth, 738 F.2d 875, 878 (7th Cir. 1984). Rather, to be entitled to a new trial, defendants must show that the challenged testimony constituted "'the willful assertion under oath of a false, material fact.'" Verser, 916 F.2d at 1271 (quoting Carey, 738 F.2d at 878); see also United States v. Dunnigan, 113 S. Ct. 1111, 1116-17, 122 L. Ed. 2d 445 (1993).
The various defendants, amicus curiae and the court have identified the following potential instances of perjured testimony in Trial I: (1) testimony regarding post-incarceration drug use; (2) testimony regarding government conferred benefits; (3) allegations that William R. Hogan, Jr. coached Henry Harris and other witnesses to lie about their opportunity to collude with each other; (4) Henry Harris' testimony regarding the Robinson-Fort-Cooper heroin investment partnership; (5) Henry Harris' testimony that Noah Robinson introduced El Rukn buyers to narcotics suppliers to raise bond money for Jeff Fort in 1983; (6) Henry Harris' testimony regarding the Howard Johnson Motel Receipt; (7) Jackie Clay's testimony concerning Robinson's solicitation of Derrick Porter to kill Henry Harris; (8) Henry Harris' account of the Ballistrieri Story; (9) Harry Evans' testimony concerning Louis Farrakhan; (10) Derrick Kees' testimony regarding Edgar Cooksey's role in the Charmane Nathan Murder; (11) allegations that William R. Hogan, Jr. coached Henry Harris to lie regarding the interpretation of Title III tapes; and (12) generalized allegations of false testimony.
1. Testimony Regarding Post-Incarceration Drug Use
A review of Henry Harris' testimony reveals that the only attempt to impeach Harris based on his drug use concerned questions limited to his activity in 1981. See R6745-46. Accordingly, it is self-evident, and defendants do not seriously contend otherwise, that Harris did not commit perjury regarding his post-incarceration drug use.
The same, however, cannot be said for Harry Evans. We have identified three passages extracted from Evans' Trial I testimony which in fact amount to willful assertions under oath of false facts concerning his post-incarceration narcotic activity. The first passage is as follows:
Q. Now, Mr. Evans, in addition to selling drugs, you used and abused drugs from the seventies until the time you went to jail in 1988, isn't that correct?