The opinion of the court was delivered by: RICHARD MILLS
RICHARD MILLS, District Judge:
Motion for new trial grounded in prosecutorial misconduct.
The motion must be denied.
On December 10, 1991, the six defendants in this case--after 28 full trial days spanning four months--were found guilty by an anonymous jury of committing various drug offenses relative to their membership in the reputed "El Rukn" Chicago street gang. The charges included conspiracy to commit racketeering, conspiracy to possess narcotics with intent to distribute, and use of a communications facility to commit a narcotics offense.
Twelve former El Rukn witnesses testified for the United States concerning the Defendants' criminal activities. Two of those witnesses were Henry Harris and Harry Evans. The Defendants argue that they should receive a new trial because of the United States' failure to disclose certain benefits that were provided to six of the prosecution witnesses. The Defendants contend that the United States' failure to disclose such material was prejudicial to the Defendants, because had the information been submitted to the jury, the jury's verdict would have been different. The Defendants also contend that the cooperating prosecution witnesses were impermissibly allowed to be in contact with each other while in the Metropolitan Correctional Center (MCC), thus giving them the opportunity to collaborate on their testimony.
For an extensive chronicle of the government's appalling misconduct and the evidence the government failed to disclose, see United States v. Burnside, 824 F. Supp. 1215 (N.D. Ill. 1993); United States v. Andrews, 824 F. Supp. 1273 (N.D. Ill. 1993); and United States v. Boyd, 833 F. Supp. 1277 (N.D. Ill. 1993). This Court will accept the factual findings in those cases for the purpose of this motion for new trial.
Four other prosecution witnesses--Ervin Lee, Jackie Clay, Derrick Kees, and Earl Hawkins--received undisclosed telephone privileges. The witnesses were also provided incidental undisclosed benefits, such as cigarettes, beer, clothing, and portable radios. The Defendants argue that if the jury had known of the benefits received by the cooperating witnesses, the information would have destroyed the witnesses' credibility, presumably because of bias, and hence, the jury would have acquitted the Defendants. The United States contends that the undisclosed evidence was immaterial in light of all of the other impeaching evidence which had been presented to the jury.
The U.S. Supreme Court has held that a prosecutor has a duty to disclose beneficial evidence to a defendant, if, without the evidence, the defendant would be deprived of his right to a fair trial. United States v. Agurs, 427 U.S. 97, 107-08, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976). The Supreme Court has applied the Agurs test to impeachment evidence and held that such evidence is material to the defendant and must be disclosed by the prosecution "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 669, 682, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985). Failure to disclose such evidence requires that the defendant be given a new trial. Id. at 682.
Because of the trial court's firsthand observation of the evidence, the decision whether to allow a motion for a new trial "rests within the sound discretion of the trial court." United States v. Reed, 875 F.2d 107, 113 (7th Cir. 1989). The U.S. Supreme Court has held that misconduct by government agents does not justify the reversal of a defendant's conviction where the misconduct did not impinge upon the defendant's right to a fair trial, i.e., prejudice the outcome of the defendant's trial. United States v. Morrison, 449 U.S. 361, 365-67, 66 L. Ed. 2d 564, 101 S. Ct. 665 (1981); United States v. Payner, 447 U.S. 727, 737 n.9, 65 L. Ed. 2d 468, 100 S. Ct. 2439 (1980). The Seventh Circuit has recently extended these cases to cover the conduct of a prosecutor, holding that a district judge may not punish prosecutorial ...