55 F.3d 239 (7th Cir. 1995), 95-1050, United States v. Boyd

Docket Nº:95-1050.
Citation:55 F.3d 239
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Jeff BOYD, et al., Defendants-Appellees.
Case Date:May 10, 1995
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 239

55 F.3d 239 (7th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellant,

v.

Jeff BOYD, et al., Defendants-Appellees.

No. 95-1050.

United States Court of Appeals, Seventh Circuit

May 10, 1995

Argued Feb. 21, 1995.

Page 240

Barry Rand Elden, Asst. U.S. Atty. and Patty Stemler (argued), Office of the U.S. Atty., Crim. Receiving, Appellate Division, Chicago, IL, for plaintiff-appellant.

Ronald J. Clark (argued), Michael J. Falconer, Joshua Sachs, Eugene O'Malley, Chicago, IL, Victor M. Pilolla, Oak Park, IL, Kenneth H. Hanson, Chicago, IL, and Noah Robinson, South Carolina Penal Institute, McCormick, SC, for defendants-appellees.

Page 241

Before POSNER, Chief Judge, and CUMMINGS and KANNE, Circuit Judges.

POSNER, Chief Judge.

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, 83 S.Ct. 1194, 10 L.Ed.2d 215 (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, 103 S.Ct. 1974, 1979-80, 76 L.Ed.2d 96 (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)

Page 242

(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); Association of Data Processing Service Organizations, Inc. v. Board of Governors, 745 F.2d 677, 683 (D.C.Cir.1984). 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 the grant 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

Page 243

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...

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180 practice notes
  • 23 F.Supp.2d 835 (N.D.Ill. 1998), 96 CR 0762, United States v. Andreas
    • United States
    • Federal Cases United States District Courts 7th Circuit Northern District of Illinois
    • July 9, 1998
    ...but not to raise an "outrageous conduct" defense which is not recognized in the Seventh Circuit. See United States v. Boyd 55 F.3d 239, 241 (7th Cir. The government, apparently not satisfied with the April 16 order, now ostensibly moves for reconsideration, requesting that the cou......
  • 781 F.Supp.2d 211 (S.D.N.Y. 2011), 09 Cr. 558 (CM), United States v. Cromitie
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • May 3, 2011
    ...has gone even further; it announced some years ago that " the doctrine does not exist in this circuit." United States v. Boyd, 55 F.3d 239, 241 (7th Cir.1995). While our Circuit has not gone so far, recognizing the doctrine Page 214 " in principle," it has announced that......
  • 733 A.2d 1 (Pa.Cmwlth. 1999), Dial v. Vaughn
    • United States
    • Pennsylvania Commonwealth Court of Pennsylvania
    • May 20, 1999
    ...conduct that occurred after enactment in refusing to comply with reasonable regulation." Id. at 309, n. 3. Accord Gilbert v. Peters, 55 F.3d at 239. Like that portion of the Virginia statute found to pass constitutional muster in Jones v. Murray, the Pennsylvania DNA Act imposes an adm......
  • 70 F.3d 1323 (D.C. Cir. 1995), 94-3033, United States v. Walls
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the District of Columbia Circuit
    • December 8, 1995
    ...Federal Court, 27 WAKE FOREST L.REV. 829, 837 n. 55 (1992). [3] Two circuits have rejected the defense altogether, United States v. Boyd, 55 F.3d 239, 241 (7th Cir.1995); United States v. Tucker, 28 F.3d 1420 (6th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1426, 131 L.Ed.2d 308 (1995......
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175 cases
  • 23 F.Supp.2d 835 (N.D.Ill. 1998), 96 CR 0762, United States v. Andreas
    • United States
    • Federal Cases United States District Courts 7th Circuit Northern District of Illinois
    • July 9, 1998
    ...but not to raise an "outrageous conduct" defense which is not recognized in the Seventh Circuit. See United States v. Boyd 55 F.3d 239, 241 (7th Cir. The government, apparently not satisfied with the April 16 order, now ostensibly moves for reconsideration, requesting that the cou......
  • 70 F.3d 1323 (D.C. Cir. 1995), 94-3033, United States v. Walls
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the District of Columbia Circuit
    • December 8, 1995
    ...Federal Court, 27 WAKE FOREST L.REV. 829, 837 n. 55 (1992). [3] Two circuits have rejected the defense altogether, United States v. Boyd, 55 F.3d 239, 241 (7th Cir.1995); United States v. Tucker, 28 F.3d 1420 (6th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1426, 131 L.Ed.2d 308 (1995......
  • 781 F.Supp.2d 211 (S.D.N.Y. 2011), 09 Cr. 558 (CM), United States v. Cromitie
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • May 3, 2011
    ...has gone even further; it announced some years ago that " the doctrine does not exist in this circuit." United States v. Boyd, 55 F.3d 239, 241 (7th Cir.1995). While our Circuit has not gone so far, recognizing the doctrine Page 214 " in principle," it has announced that......
  • 928 F.Supp. 734 (N.D.Ill. 1996), 96 CR 87-3, United States v. Alvarez
    • United States
    • Federal Cases United States District Courts 7th Circuit Northern District of Illinois
    • May 24, 1996
    ...on the merits." Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 409, 100 L.Ed. 397 (1956). See United States v. Boyd, 55 F.3d 239, 241 (7th Cir.1995) (doctrine of "outrageous government misconduct" does not exist in the Seventh Circuit); United States v. Burke, 78......
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4 books & journal articles
  • Preindictment prosecutorial conduct in the federal system revisited.
    • United States
    • Journal of Criminal Law and Criminology Vol. 96 Nbr. 2, January 2006
    • January 1, 2006
    ...courts will not allow the government to prosecute offenses developed through that conduct."). (231) Compare United States v. Boyd, 55 F.3d 239, 241 (7th Cir. 1995), United States v. Tucker, 28 F.3d 1420, 1428 (6th Cir. 1994) (rejecting the doctrine completely), and United States v. Cap......
  • A reason to doubt: the suppression of evidence and the inference of innocence.
    • United States
    • Journal of Criminal Law and Criminology Vol. 100 Nbr. 2, March 2010
    • March 22, 2010
    ...("The prosecutor, more than neutral jurists, can better perceive the weakness of the state's case."); United States v. Boyd, 55 F.3d 239, 242 (7th Cir. 1995) ("If the prosecutors did not think their case air tight (and so they tried to improperly bolster it), this is some ind......
  • Death or declaration?
    • United States
    • Journal of Criminal Law and Criminology Vol. 86 Nbr. 4, June 1996
    • June 22, 1996
    ...(82) Id See also Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123 (1969). (83) Id. (84) See, e.g., United States v. Boyd, 55 F.3d 239, 242 (7th Cir. 1995); United States v. Price, 13 F.3d 711, 722 (3d Cir. 1994). (85) See, e.g., United States v. Payne, 63 F.3d 1200, 1209 (2......
  • SC Lawyer, July 2012, #5. Leveling the playing fieid.
    • United States
    • South Carolina Bar Journal Nbr. 2012, January 2012
    • January 1, 2012
    ...than there are distinctions actually capable of being drawn in the practice of appellate review." United States v. Boyd, 55 F.3d 239, 242 (7th Cir. 1995). South Carolina courts might seem to share that muddled catalog of standards, and as a result, when a dedicated ......