Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 92 CR 677 -- Ann C. Williams, Judge.
Before POSNER, Chief Judge, ESCHBACH, and KANNE, Circuit Judges.
Jose Juan Rodriguez-Andrade ("Rodriguez") appeals from his conviction for conspiracy to possess with intent to distribute heroin in violation of 21 U.S.C. sec. 846, and from the district court's denial of his motion for a new trial on the grounds that the government knowingly relied upon perjured testimony and suppressed material exculpatory evidence. We affirm.
According to the government's evidence at trial, on July 28, 1992, Rodriguez visited his cousin Jose Antonio Varela ("Varela") at Varela's house. Knowing that Varela sometimes engaged in drug dealing, Rodriguez asked him if he would be interested in purchasing a kilogram of heroin for approximately $100,000. During the visit, Varela agreed to help set up the deal with a friend of his who might be interested in purchasing the heroin. Unbeknownst to Rodriguez, though, Varela had been convicted of distributing drugs and was cooperating with the federal Drug Enforcement Administration ("DEA") in an effort to obtain a favorable sentencing recommendation. Thus, Varela's buyer turned out to be undercover DEA Agent Rafael Tovar, and Varela tape recorded his subsequent conversations with Rodriguez concerning the deal. On August 17, 1992, after one of Rodriguez's co-conspirators handed over the heroin to Agent Tovar, Rodriguez and his suppliers were arrested.
During trial, Rodriguez countered the tape recordings with an entrapment defense, arguing that he had no experience or interest in drugs until Varela came to him in an attempt to persuade him to enter into a drug transaction. Defense counsel focused intensely on Varela's questionable credibility, cross-examining him about his extensive criminal history, his financial arrangement with the government, his prior inconsistent statements and perjury of many forms, and his bribery of police officers. Rodriguez was not permitted, however, to cross-examine Varela concerning his prior convictions for burglary and misdemeanor criminal trespass, or concerning his uncharged involvement with an ongoing murder investigation in Maywood, Illinois, where Varela was suspected to have "ripped-off" a drug dealer and then murdered him. On April 22, 1992, the jury found Rodriguez guilty of conspiring to possess with intent to distribute heroin.
Subsequently, Rodriguez moved for a new trial based upon evidence which purportedly revealed that Varela had committed perjury at several points during his testimony and based upon the government's alleged suppression of evidence which would have revealed some of this perjury. The district court denied this motion. Rodriguez filed a timely notice of appeal and we have jurisdiction under 28 U.S.C. sec. 1291.
On appeal, Rodriguez continues to press his motion for a new trial, and argues as additional grounds for reversal that the trial court erroneously limited his cross-examination of Varela through a motion in limine, gave an improper instruction on entrapment, and received an inappropriate ex parte communication from the government, and that the jury convicted him on the basis of insufficient evidence.
The denial of Rodriguez's motion for a new trial is reviewed under an abuse of discretion standard. United States v. Adcox, 19 F.3d 290, 295 (7th Cir. 1994). We defer to the district court's judgment as to whether the perjury or exculpatory evidence, to the extent it existed at all, would have changed the outcome of the trial if disclosed. United States v. Boyd, 55 F.3d 239, 242 (7th Cir. 1995).
First, Rodriguez argues that Varela testified falsely. To receive a new trial on the basis of false testimony, Rodriguez must establish 1) the prosecution's case included false testimony; 2) the prosecution knew, or should have known, of the false testimony; and 3) there is a reasonable probability that, had it not been for the false testimony, he would have been acquitted. United States v. Ferguson, 35 F.3d 327, 332 (7th Cir. 1994), cert. denied, 115 S. Ct. 1832 (1995); Boyd, 55 F.3d at 243. See Kyles v. Whitley, 115 S. Ct. 1555, 1566 (U.S. 1995). A mere inconsistency in testimony, however, does not establish the ...