U.S. v. Mazzanti
| Decision Date | 19 February 1991 |
| Docket Number | No. 90-1019,90-1019 |
| Citation | 925 F.2d 1026 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Donald MAZZANTI, * Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Daniel W. Gillogly, Asst. U.S. Atty., Ronald S. Safer, Office of the U.S. Atty., Barry R. Elden, Asst. U.S. Atty., Criminal Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.
Rick Halprin (argued), Marc R. Kadish, Legal Services Center, Chicago, Ill., for defendant-appellant.
Before COFFEY, EASTERBROOK and RIPPLE, Circuit Judges.
Donald Mazzanti seeks review of the district court's denial of his motion for a new trial on the ground of newly discovered evidence. For the reasons set forth in this opinion, we affirm the judgment of the district court.
Mr. Mazzanti is before this court for the second time. His convictions were affirmed in United States v. Mazzanti, 888 F.2d 1165 (7th Cir.1989) (Mazzanti I ), cert. denied, --- U.S. ----, 110 S.Ct. 2167, 109 L.Ed.2d 497 (1990). While that appeal was pending, Mr. Mazzanti moved for a new trial because a government witness, Robert Blessing, had recanted part of his trial testimony. 1 The factual background of the case is recounted in Mazzanti I, 888 F.2d at 1167-68. We shall provide below only those facts necessary to place his current appeal in context.
Mr. Mazzanti and his confederates were charged in an eight-count indictment with various violations of the federal narcotics laws. Count I charged all defendants, including Mr. Mazzanti, with conspiring to possess with intent to distribute and to distribute cocaine. Mr. Mazzanti also was charged, in Counts II, III, V, and VII, with possession with intent to distribute and distribution of cocaine.
With respect to Count II, the government's evidence showed that Agent John Riley of the Drug Enforcement Administration (DEA) posed as a friend of Robert Blessing and went to the ABC Lounge in Streamwood, Illinois, on April 2, 1987. Blessing had arranged for Agent Riley to purchase two ounces of cocaine from Oscar DeLisle, one of the charged co-conspirators. When the two arrived, DeLisle told Agent Riley that the cocaine would be Count III of the indictment was based on a similar transaction. On April 13, 1987, Agent Riley and Blessing drove to the ABC parking lot. DeLisle arrived in an orange van, which pulled up to the driver's side of Agent Riley's car. Blessing, who was in the driver's seat of Agent Riley's car, saw both Mr. Mazzanti and Born in the van. DeLisle came to Agent Riley's side of the car and informed him that he did not have the cocaine with him but that the orange van would return with the drugs. DeLisle also indicated that the parking lot was full of other customers awaiting the arrival of cocaine. DeLisle then entered the ABC Lounge. Later, the van returned with Born and DeLisle, and DeLisle gave Agent Riley over fifty-five grams of cocaine in exchange for $3,200.
there within the hour. Another DEA agent, William Maloney, had been observing activity in the ABC Lounge prior to the arrival of Agent Riley and DeLisle. During that time, he had seen Mr. Mazzanti speaking with DeLisle. DeLisle and Mr. Mazzanti also conversed after Agent Riley and Blessing arrived and spoke with DeLisle. Agent Maloney then observed Mr. Mazzanti leave the lounge and get into the van of Paul Born, another co-conspirator. Agent Maloney also observed the van return to the bar. Mr. Mazzanti and Born reentered the bar and spoke with DeLisle, who had not left the bar in the interim. DeLisle motioned Agent Riley and Blessing to come to the rear of the bar; he then proceeded to another room and produced a clear plastic bag containing over fifty-five grams of cocaine. He gave Agent Riley the cocaine in exchange for $3,200.
Count V is based on the following evidence. A month later, on May 13, 1987, Agent Riley and Blessing went to DeLisle's home and met with DeLisle and Mr. Mazzanti in the basement of the house. DeLisle said that he did not have the drugs but that he would go out and get them. While Agent Riley was awaiting the delivery of another package of cocaine, he asked Mr. Mazzanti if the quality of the drugs would be any better than what he had already received. Mr. Mazzanti responded that they had a new source of the drugs and that Agent Riley would be extremely happy with them. A short time later, DeLisle returned and gave Agent Riley fifty-two grams of cocaine in exchange for $3,200. Mr. Mazzanti was present when this exchange occurred.
Count VII involves a multi-kilogram cocaine deal that was completed on July 13, 1987. Agent Riley negotiated the deal with co-conspirators Taglia and Westerman. Agent Riley initially told Taglia that he wanted $250,000 worth of drugs, and Taglia informed him that he could purchase approximately nine kilograms of cocaine for that sum of money. On July 13, Agents Riley and Maloney went to Taglia's condominium and offered to purchase $175,000 worth of cocaine. Taglia ultimately agreed to sell approximately six kilograms for that price. Westerman counted the money and checked to see whether the serial numbers were consecutive. The group then drove to a restaurant where the transaction was to take place. When they arrived, they were met by Mr. Mazzanti and DeLisle. Agent Riley asked Mr. Mazzanti if the quality of the cocaine that he was purchasing was good. Mr. Mazzanti responded that Agent Riley would be happy. Mr. Mazzanti stated that the cocaine should be coming at any moment and explained that he had to be careful what he was doing. He also stated that the cocaine would be delivered in a white paint bucket. Eventually, a maroon van arrived at the restaurant, and Mr. Mazzanti went over to it and took a white paint bucket from Paul Born. He placed this bucket in Blessing's car trunk and returned to the restaurant, where he handed Blessing his keys and told him that the package had arrived.
On July 7, 1989, after Mr. Mazzanti had been convicted and sentenced, the government informed him that Robert Blessing had recanted a portion of his trial testimony. Blessing had testified that, on July 10, 1987, while at the home of Born, he had seen Westerman hand a package containing a white substance to Taglia. In July 1989, Blessing informed the government that he did not see Westerman hand Taglia any package. The district court denied Mr. Mazzanti's motion for a new trial.
In this appeal, Mr. Mazzanti argues that the district court erred in refusing to grant him a new trial. He argues that Blessing was a key witness to establish the existence of the charged conspiracy and that only Blessing's testimony linked Mr. Mazzanti with the April 13, 1987 transaction that comprised Count III of the indictment. Mr. Mazzanti stresses that the jury had no idea that Blessing had lied during the investigation of the case. Moreover, the recanted testimony related to an act of the alleged conspiracy, the gathering of cocaine for the July 13th transaction. The fact that Blessing lied under oath regarding incidents of July 10, 1987 also calls in question, Mr. Mazzanti submits, the testimony of this witness regarding all other matters. He thus contends that, at the least, the district court should have granted him an evidentiary hearing to determine if Blessing had committed other perjury during the trial.
Finally, Mr. Mazzanti claims that, as a matter of public policy, a new trial ought to be granted. Relying on Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956), Mr. Mazzanti argues that the government should not be permitted to sustain a conviction when the recanting witness is its own informant and when the government no longer vouches for the credibility of the witness.
In determining whether a new trial ought to be granted on the ground that newly discovered evidence discloses false trial testimony, this circuit has employed the test set forth in Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir.1928) (emphasis in original):
[A] new trial should be granted when,
(a) The court is reasonably well satisfied that the testimony given by a material witness is false.
(b) That without it the jury might have reached a different conclusion.
(c) That the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial. 2
The government suggests that we abandon this controlling precedent and hold that a motion for a new trial on the ground of false testimony ought to be governed by the rule used for all other motions for a new trial based on newly discovered evidence. In these situations, "defendant[s] must show that the evidence (1) came to their knowledge only after trial; (2) could not have been discovered sooner had defendants exercised due diligence; (3) is material, and not merely impeaching or cumulative; and (4) would probably lead to an acquittal in the event of a retrial." United States v. Oliver, 683 F.2d 224, 228 (7th Cir.1982) (emphasis supplied). 3
The difference between Larrison and the more general formulation has become, over the years, more and more elusive, and, as the court's opinion in United States v. Van Daal Wyk, 840 F.2d 494, 500 (7th Cir.1988), perhaps suggests implicitly, the differences in practical application are indeed becoming difficult to discern. While the growing difficulty in perceiving a difference in the cases might well justify a reexamination in a case in which the application of the tests would make a difference no such necessity presents itself today. In our view, a principled application of Larrison, the "more lenient" 4 of the tests, still requires affirmance of the district court.
In analyzing the evidence of record against the Larrison test, we must, of course, give great deference to the trial judge's assessment of the evidence and its probable impact on the...
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