The opinion of the court was delivered by: GEORGE W. LINDBERG
On January 23, 1992, defendant was convicted of conspiring to distribute ten kilograms of cocaine in violation of 21 U.S.C. § 846, possessing ten kilograms of cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1) and with possessing a firearm in the course of a drug offense in violation of 18 U.S.C. § 924(c). Prior to trial, the government filed a notice of prior conviction which apprised the court that defendant had previously been convicted of a felony drug offense. On April 30, 1992, the court sentenced defendant to twenty-five years' imprisonment.
Defendant subsequently appealed.
In December of 1992, the Assistant United States Attorneys who tried the case ("trial Assistants") were informed by a supervisor in the United States Attorney's Office that an investigation was pending involving allegations against one of the government's chief witnesses at trial. The trial Assistants then sent a letter, dated February 1, 1993, to defense counsel informing them of "certain information that had recently become available to the government" concerning Officer Doe.
The letter provided in part:
The government has information that Officer [Doe] may have provided false information to the Circuit Court of Cook County on at least two occasions. Specifically, false information may be contained in two complaints for search warrant signed by Officer [Doe] in support of applications for two separate search warrants. The first incident occurred in April 1989 and involved the search of Mike Canezaro's residence and his arrest. The second incident occurred in June 1989 and resulted in the search of Mike Fusco's residence and his arrest.
The nature of the allegedly false information is that in each affidavit, Officer [Doe] averred that he had received information from a confidential informant that narcotics related activity had taken place at the location for which each search warrant was sought.
The Confidential Informant was not identified in either complaint for search warrant; however, Chicago Police Department records bearing Officer [Doe's] name and what purports to be his signature identify one individual as the confidential informant who provided search warrant information for both of these searches. In December 1992, this individual advised the government that s/he did not provide the information described in either complaint for search warrant.
A review of other search warrant affidavits and Chicago Police records is ongoing following the confidential informant's interview to determine whether information may have been inaccurately attributed to him by Officer [Doe] on other occasions and to determine whether payments made to the informant were accurately recorded in Chicago Police Department records. The informant has stated that s/he was not paid as much money as Chicago Police Department records reflect and did not provide search warrant information on as many occasions as indicated in Chicago Police Department records.
Mr. Canezaro made no Franks challenge to the search warrant. Until December 1992 no corroboration of the allegation of false information in the search warrant was known to the government. Mr. Canezaro has several felony convictions, including one for perjury, and was convicted of the narcotics charges brought against him after the search of his residence. (Case number 89 CR 11091)
Upon the execution of the June 1989 search warrant, Mike Fusco was arrested and charged with narcotics violations. (case number 89-14556) Subsequently, a motion attacking the search warrant on Franks grounds was filed and a hearing was held before the Honorable Earl E. Strayhorn. Officer [Doe] was among several witnesses who testified at that hearing. Judge Strayhorn ultimately found that defendant had met his burden and thereupon quashed the warrant and suppressed the evidence seized pursuant thereto. No specific findings were made as to the credibility of any witness who testified at the hearing.
Officer [Doe], through his counsel, Joseph Roddy, has denied the allegations relating to both the April and June 1989 search warrants, but, citing the Fifth Amendment, he has declined to be interviewed by government agents or attorneys. Mr. Roddy had advised this office that Mr. [Doe] will not agree to be interviewed on these topics and if asked about these subjects under oath, he would assert his privilege under the Fifth Amendment.
(Government's February 1, 1993 letter at 1-2).
In a subsequent submission, the government set forth the procedural history of the allegations against Doe and resulting investigation as follows. On July 17, 1990, an agent from the FBI's public integrity squad and an Assistant United States Attorney from the Criminal Division of the Chicago United States Attorney's Office formally interviewed Canezaro regarding the allegations he made against Officer Doe during his probation revocation hearing. The subsequent FBI investigation involved identifying and interviewing other individuals who had been arrested by Doe and another officer against whom Canezaro had made similar allegations. As of July 1991, the FBI did not find any new or corroborating evidence.
In July of 1991, the Assistant United States Attorney assigned to the investigation learned that Officer Doe had been detailed to the DEA task force since March of 1990 and was therefore working on many cases being prosecuted by the United States Attorney's Office in Chicago. The United State's Attorney concluded that the Chicago United States Attorney's Office should ...