U.S. v. Kaufmann

• Decision Date: 03 October 1986
• Docket Number: Nos. 85-1692,85-1693 and 85-1695,s. 85-1692
• Citation: 803 F.2d 289
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Peter J. KAUFMANN, Jan E. Ostermeier and William C. Cummings, Defendants- Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 289

803 F.2d 289

UNITED STATES of America, Plaintiff-Appellee, v. Peter J. KAUFMANN, Jan E. Ostermeier and William C Cummings, Defendants- Appellants.

Nos. 85-1692, 85-1693 and 85-1695.

United States Court of Appeals Seventh Circuit.

Argued Jan. 17, 1986.

Decided Oct. 3, 1986.

Ralph A. Kalal, Kalal & Habermehl, Madison, Wis., Leonard G. Leverson, Milwaukee, Wis., for defendants-appellants.

Grant C. Johnson, U.S. Atty.'s Office, Madison, Wis., for plaintiff-appellee.

Before CUMMINGS, CUDAHY and EASTERBROOK, Circuit Judges.

CUDAHY, Circuit Judge.

The defendants were convicted of conspiracy to purchase marijuana with intent to distribute. They requested a new trial because one of the witnesses at trial, a government agent, had testified falsely about the number of telephone conversations he had had with one of the defendants the morning of the sting operation. The district court denied the motion for a new trial. We affirm.

I

The four co-defendants in this case, Peter J. Kaufmann, Jan E. Ostermeier, William C. Cummings and Terrell D. Brown, ¹ were convicted by a jury of conspiracy to purchase marijuana with intent to distribute. Kaufmann was also convicted of using a communications facility in furtherance of the conspiracy. The government agents involved in this case had carried out a "reverse sting" operation in which the agents assumed the role of marijuana suppliers and sought to sell marijuana to the defendants.

At trial the government's principal witness, Agent John Holm of the Division of Criminal Investigation of the Wisconsin Department of Justice, testified that on June 15, 1984, the date of the sting operation, he had not spoken to Kaufmann before eleven that morning. After trial the defendants moved to vacate their convictions, or in the alternative for a new trial, because Holm had testified falsely at trial. After a hearing the district court found that Holm's testimony was false. Holm had in fact called Kaufmann three times before 11 a.m. on June 15. The district court, however, explicitly declined to find whether Holm had perjured himself. Presumably it was only considering whether the defendants were entitled to a new trial under Larrison v. United States, 24 F.2d 82 (7th Cir.1928), which does not require that the false testimony be perjured. The district court found that the defendants had failed to meet the other requirements of Larrison, see infra at 292-293, and thus denied the motion for a new trial.

On appeal we remanded to the district court to determine whether the prosecution's case included perjured testimony and whether the prosecution knew, or should have known, of the perjury under the standard articulated in Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959). See United States v. Kaufmann, 783 F.2d 708 (7th Cir.1986). On remand the district court found that Holm did not know that he was testifying falsely about the telephone calls. The district court further found that the prosecution did not know that the testimony was false and that the circumstances were not such that the prosecutor should have known of its falsity. The district court thus reinstated its denial of the motion for a new trial. Now that the appropriate findings are before us, we will address the merits of the defendants' appeal of their convictions.

The defendants each make different arguments. Kaufmann argues that the record does not support the district court's conclusion that the prosecutor did not know that Holm's testimony was false. He also argues that the district court's theory of Holm's credibility is flawed. Ostermeier argues that he is entitled to a new trial under Larrison and also because of the government's misconduct. Further, he argues that there was insufficient evidence to convict him. Cummings argues that he is entitled to a new trial under Larrison. All of the defendants contend that the district court should have held an evidentiary hearing on remand.

II

It is within the sound discretion of the district court to decide whether a new trial should be granted on the basis of newly discovered evidence. See United States v. Nero, 733 F.2d 1197, 1202 (7th Cir.1984). On appeal we only review the district court's decision for an abuse of discretion. Id. The heavy burden placed upon the appellant in this situation has repeatedly been noted by this court:

The party who claims that the trial court erred in denying his motion for a new trial is not likely to be successful. The appellate court properly defers to the view of the trial court, and will affirm unless there has been an error as a matter of law or a clear and manifest abuse of judicial discretion.

Id. (quoting United States v. Davis, 604 F.2d 474, 484 (7th Cir.1979)).

In his initial brief to this court, Kaufmann argued that he was entitled to a new trial under the standard articulated in Napue. Under that standard a conviction must be set aside if the prosecution's case includes perjured testimony, the prosecution knew, or should have known, of the perjury, and there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. See United States v. Bagley, --- U.S. ----, 105 S.Ct. 3375, 3382 & n. 8, 87 L.Ed.2d 481 (1985); United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976); Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 765-66, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 269-71, 79 S.Ct. 1173, 1177-78, 3 L.Ed.2d 1217 (1959); United States v. Jackson, 780 F.2d 1305, 1309 (7th Cir.1986); United States ex rel. Smith v. Fairman, 769 F.2d 386, 392 (7th Cir.1985).

In light of the district court's findings on remand, Kaufmann argues that a prosecutor cannot obtain a conviction through the knowing use of false evidence, even if the testimony is only mistaken rather than perjured, and that the record does not support the district court's finding that the prosecutor did not know that the testimony was false. Kaufmann argues that the record contains no evidence as to the state of the prosecutor's knowledge of the falsity of Holm's testimony. In the case before us, however, it is reasonable to infer that if Holm did not know of the falsity of his testimony, the prosecutor also did not. Holm's testimony at trial about the phone calls was consistent with his earlier testimony before the grand jury and with his deposition testimony. Kaufmann argues that certain inconsistencies in Holm's testimony should have put the government on notice of the falsity of his testimony. ² The district court, however, concluded that the inconsistencies in Holm's testimony did not put either Holm or the prosecutor on notice.

It could be argued that Holm should have checked the office telephone records once he noticed the references in the 11:00 a.m. call to the accident and the splitting of the sale. Although that would have been a wise step, his failure to take it does not render his testimony perjured, or the government's use of it knowing, even attributing Holm's knowledge to the federal prosecutor. I suspect that Holm had convinced himself that he did learn about the accident during his midnight meeting with Kaufmann and thus saw no discrepancy in the phone conversation that would have prompted him to check the telephone records. Since he had more incentive to check and ensure the completeness and accuracy of his testimony, I find it improbable that he chose intentionally not to check or that he checked and concealed the results of his check.

District Court Order (March 19, 1986) at 10. The district court did not abuse its discretion in finding that Holm did not commit perjury and that the prosecutor did not know of the falsity of Holm's testimony.

Kaufmann also argues that the district court's theory of Holm's credibility was faulty. He argues that the district court erred because it predicated its theory of credibility in part on Kaufmann's failure to raise an entrapment defense. Kaufmann argues that he did in fact raise an entrapment defense. He cites to portions of his opening argument at trial, which do contain contentions that he was entrapped. However, Kaufmann apparently did not pursue the entrapment defense beyond his opening argument. The jury instructions submitted by Kaufmann did not contain an entrapment instruction, and he did not request such an instruction during the jury instruction conference. Further, the fact that Kaufmann did not raise an entrapment defense was only one of several reasons from which the district court concluded that Holm did not perjure himself. ³

III

Ostermeier's original appellate brief does not rely on Napue in arguing for a new trial, but rather relies on Larrison v. United States, 24 F.2d 82 (7th Cir.1928). The Larrison requirements for a new trial were recently set forth in United States v. Nero, 733 F.2d 1197 (7th Cir.1984):

(a) The court is reasonably well satisfied that the testimony given by a material witness is false.

(b) That 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.

733 F.2d at 1202 (quoting Larrison, 24 F.2d at 87-88) (emphasis in original).

The district court found that the jury would not have reached a different conclusion had the false testimony not been given. Ostermeier argues that the jury might have reached a different conclusion because if Holm had been exposed before thejury as having deliberately told falsehoods his credibility would have been seriously undermined. However, the district court found that Holm did not know that he was testifying falsely. Thus it is unlikely that exposure of the falsehood would have had such a significant effect on his credibility. Further, the district court found that the evidence of the additional calls would not affect the outcome of...