Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 89 CR 908--Marvin E. Aspen, Judge.
POSNER, Chief Judge, and CUMMINGS and KANNE, Circuit Judges.
The United States appeals from an order by the district judge granting (with the immaterial exception of minor counts against two of the defendants) a motion for a new trial by criminal defendants. 833 F. Supp. 1277 (N.D. Ill. 1993). (For collateral proceedings, see United States v. Burnside, 824 F. Supp. 1215 (N.D. Ill. 1993), and United States v. Andrews, 824 F. Supp. 1273 (N.D. Ill. 1993).) Although interlocutory, such an order is appealable to us under 18 U.S.C. sec. 3731. The defendants, six leaders and one close associate of the "El Rukns," a notorious Chicago street gang formerly known as the "Blackstone Rangers" and the "Black P Stone Nation," were convicted by a jury after a four-month trial of a variety of very serious federal crimes. The judge sentenced five of the defendants to life in prison and the other two to fifty years. The evidence showed that during the 1980s the El Rukns had trafficked in heroin and cocaine on a large scale in the southern and western areas of the city and to protect their lucrative turf had committed many murders, attempted murders, kidnappings, and acts of intimidation. Their targets had included not only rivals in the drug trade but also potential witnesses.
The government's case depended heavily on the testimony of six former gang leaders, including Harry Evans and Henry Harris. The ground for the motion for a new trial was that the government had knowingly allowed Evans and Harris to perjure themselves at the trial and had withheld from the defense evidence that during the trial all six, who were being held at the Metropolitan Correctional Center (near the federal courthouse where the trial was held), had used illegal drugs and received unlawful favors from government prosecutors and their staffs. The district judge granted the motion for a new trial--in an opinion that occupies 90 pages of small print in the Federal Supplement--after he had taken testimony at a post-trial evidentiary hearing from 29 witnesses. The testimony convinced him that prosecutors and staff in the office of the U.S. Attorney for the Northern District of Illinois had engaged in misconduct far more serious than anything involved in typical cases in which a prosecutor is accused of the knowing use of perjured testimony or of the violation of a defendant's right under Brady v. Maryland, 373 U.S. 83 (1963), to be shown exculpatory evidence that is in the prosecution's possession. The government does not challenge the district judge's finding of gross prosecutorial misconduct, and we have no reason to suppose the finding flawed. But the Supreme Court has told us that we are not to reverse convictions in order to punish prosecutors. United States v. Hasting, 461 U.S. 499, 506-07 (1983). Prosecutorial misconduct may precipitate a reversible error, but it is never in itself a reversible error. United States v. Van Engel, 15 F.3d 623, 631 (7th Cir. 1993). In great tension with this principle, there are intimations that "outrageous governmental misconduct" is an independent ground for ordering a new trial in a federal criminal case; but we agree with the First Circuit that "the doctrine [of outrageous governmental misconduct] is moribund." United States v. Santana, 6 F.3d 1, 4 (1st Cir. 1993). "Stillborn" might be a better term, for it never had any life; and it certainly has no support in the decisions of this court, which go out of their way to criticize the doctrine. United States v. Okey, 47 F.3d 238, 240 n. 2 (7th Cir. 1995); United States v. Nava-Salazar, 30 F.3d 788, 800 (7th Cir. 1994); United States v. Cyprian, 23 F.3d 1189, 1197 (7th Cir. 1994); United States v. Van Engel, supra, 15 F.3d at 631-32; United States v. Olson, 978 F.2d 1472, 1481-82 (7th Cir. 1992); United States v. Miller, 891 F.2d 1265, 1271-73 (7th Cir. 1989) (concurring opinion). Today we let the other shoe drop, and hold that the doctrine does not exist in this circuit. The gravity of the prosecutors' misconduct is relevant only insofar as it may shed light on the materiality of the infringement of the defendants' rights; it may support, but it can never compel, an inference that the prosecutors resorted to improper tactics because they were justifiably fearful that without such tactics the defendants might be acquitted. United States v. Dimas, 3 F.3d 1015, 1020 (7th Cir. 1993) (per curiam); United States v. Jackson, 780 F.2d 1305, 1311 n. 4 (7th Cir. 1986). If the prosecutors did not think their case airtight (and so they tried to bolster it improperly), this is some indication that it was indeed not airtight.
Although the government intimates that Judge Aspen's real motive for granting the motion for a new trial was to punish the U.S. Attorney's office for its misbehavior, there is no evidence of such a motive and we think it unlikely that, having just sat through a four-month trial and sentenced five of the defendants to life in prison and the other two to fifty years apiece, Judge Aspen would have been predisposed to grant a motion that might require him to sit through another four-month trial of the same defendants.
The government's 63-page opening brief barely mentions the standard of appellate review of the grant of a motion for a new trial in a criminal case. It argues that the district judge "abused his discretion," thereby tacitly acknowledging that the standard of review is deferential rather than plenary, but it makes no effort to maintain the distinction. It is content to argue that the judge erred.
We are not fetishistic about standards of appellate review. We acknowledge that there are more verbal formulas for the scope of appellate review (plenary or de novo, clearly erroneous, abuse of discretion, substantial evidence, arbitrary and capricious, some evidence, reasonable basis, presumed correct, and maybe others) than there are distinctions actually capable of being drawn in the practice of appellate review. Morales v. Yeutter, 952 F.2d 954, 957 (7th Cir. 1991); Haugh v. Jones & Laughlin Steel Corp., 949 F.2d 914, 916-17 (7th Cir. 1991); cf. United States v. Mazzanti, 925 F.2d 1026, 1029 (7th Cir. 1991). But even if, as we have sometimes heretically suggested, there are operationally only two degrees of review, plenary (that is, no deference given to the tribunal being reviewed) and deferential, Morales v. Yeutter, supra, 952 F.2d at 957, that distinction at least is a feasible, intelligible, and important one. Yet apart from a parenthetical acknowledgment that the standard of review of denial of a motion for a new trial is abuse of discretion, the issue of the proper standard was ignored by the government until its reply brief, which acknowledged that appellate review of an order granting a new trial in a criminal case is indeed deferential--a concession that the government then evaded at the oral argument.
Appellate review of these orders is not deferential tout court. If the judge in the course of his analysis has occasion to resolve a pure issue of law, our review of that resolution is plenary. United States v. Adebayo, 985 F.2d 1333, 1341 (7th Cir. 1993). But the other judgments that the district judge makes, signally here the judgment whether some piece (or pieces) of evidence wrongfully withheld by the government might if disclosed have changed the outcome of the trial, are to be reviewed deferentially. This is not only the rule; it is the dictate of common sense, especially in a case such as this. Forget the 29 witnesses at the evidentiary hearing; forget there was an evidentiary hearing on the motion for a new trial.
Before then, during the trial, Judge Aspen had for months on end listened to witnesses--had heard, had not merely read, their testimony, and had watched them as they gave it. And he had observed the jurors as they listened to the witnesses. A trial judge of long experience, he would have developed a feel for the impact of the witnesses on the jury--and how that impact might have been different had the government played by the rules--that an appellate court, confined to reading the transcript, cannot duplicate. Judge Aspen may have been mistaken; we might suspect that he was mistaken; but unless we are convinced that he was mistaken, we have no warrant to reverse. That is what it means to say that appellate review is deferential. It is not abject, Carr v. Allison Gas Turbine Division, 32 F.3d 1007, 1008 (7th Cir. 1994), but it is deferential.
Having cleared the underbrush, we consider first whether Judge Aspen committed clear error in finding that the government had made knowing use of perjured testimony at the trial. Witness Evans, jailed in 1988 on numerous charges, had been held in the Metropolitan Correctional Center ever since. He thus was there throughout the trial of the defendants, which was held in 1991, except of course when he was testifying or meeting with prosecutors or prosecution staff in the courthouse or in the federal building across the street. Throughout the entire period Evans used illegal drugs and the prosecutors knew it. The question of his drug use came up at trial. He was asked by the prosecutor, "[Y]ou used and abused drugs from the seventies until the time you went to jail in 1988, isn't that correct?" "Yes, sir," replied Evans. The prosecutor then asked, "[H]ow many years would you say you have been using and abusing drugs?" Answer: "You just said it." "From '74 to '88, or earlier?" "That's a good figure." Judge Aspen interpreted Evans's last answer to mean that he had stopped using drugs in 1988. This is not an inevitable interpretation, but we cannot call it unreasonable; and so interpreted Evans's answer was a lie, and the government knew it. Whether the question was precise enough that Evans could actually be convicted of perjury may be doubted; but the wrong of knowing use by prosecutors of perjured testimony does not require a determination that the witness could have been successfully prosecuted. Successful prosecution would require proof beyond a reasonable doubt not only that the witness's testimony had been false but also that it had been knowingly false (and hence perjury). The wrong of knowing use by prosecutors of perjured testimony is different, and misnamed--it is knowing use of false testimony. It is enough that the jury was likely to understand the witness to have said something that was, as the prosecution knew, false. Hamric v. Bailey, 386 F.2d 390, 394 (4th Cir. 1967); Ronald L. Carlson, "False or Suppressed Evidence: Why a Need for the Prosecutorial Tie?" 1969 Duke L.J. 1171, 1186 n. 42; David Wolf, Note, "I Cannot Tell a Lie: The Standard for New Trial in False Testimony Cases," 83 Mich. L. Rev. 1925, 1926 n. 7, 1943 (1985); cf. Giglio v. United States, 405 U.S. 150, 153 (1972); United States v. Anderson, 574 F.2d 1347, 1355 (5th Cir. 1978). We cannot find any recent cases that enunciate this principle clearly, but it is implicit in the frequent use of "false" as a synonym for "perjured" in cases in which prosecutors are claimed to have knowingly used perjured testimony. E.g., United States v. Agurs, 427 U.S. 97, 103 (1976); United States v. Adcox, 19 F.3d 290, 295 (7th Cir. 1994); United States v. Verser, 916 F.2d 1268, 1271 (7th Cir. 1990).
Shortly after the exchange that we just quoted, Evans said, "But I'm not on drugs now." We do not know whether he was high when he said this, so probably, again, he could not be successfully prosecuted for perjury. But given the context, Judge Aspen was entitled to infer that Evans would have been understood by the jury to have meant that he was no longer using drugs, which was false. Evans also answered "No" to the question, "You are not dealing drugs anymore?" The evidence is that he was. He was heard to admit this in a phone conversation a year later, while before the trial he not only had been using drugs but had had in his possession large, unexplained quantities of cash. The suspicious circumstances bracketed the trial and there was no basis for supposing that he had behaved himself during the trial. The government knew all this. Judge Aspen was entitled to infer that Evans had lied when he testified that he was not dealing in drugs any more, and that the government had known that he had lied.
The knowing use of perjured testimony is not an automatic ground for a new trial. There must be some likelihood that it made a difference. Giglio v. United States, supra, 405 U.S. at 154; United States v. Agurs, supra, 427 U.S. at 103; United States v. Douglas, 874 F.2d 1145, 1161 (7th Cir. 1989). But of course the impact of the testimony need not be considered apart from the impact of other improprieties committed by the ...