U.S. v. Williams

• Citation: 81 F.3d 1434
• Decision Date: 23 April 1996
• Docket Number: Nos. 92-2794,92-2796,s. 92-2794
• Parties: , 44 Fed. R. Evid. Serv. 111 UNITED STATES of America, Plaintiff-Appellee, v. Edward WILLIAMS, et al., Defendant-Appellant. to 92-2799, 92-2849 and 94-1517.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1434

81 F.3d 1434

64 USLW 2738, 44 Fed. R. Evid. Serv. 111

UNITED STATES of America, Plaintiff-Appellee, v. Edward WILLIAMS, et al., Defendant-Appellant.

Nos. 92-2794, 92-2796 to 92-2799, 92-2849 and 94-1517.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 1, 1995.

Decided April 23, 1996.

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 89 CR 908--Richard Mills, Judge.

Barry Rand Elden, Chief of Appeals (argued), Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, for U.S. in Nos. 92-2794, 92-2797, 92-2799 and 92-2849.

Theodore T. Poulos, Barry Rand Elden, Chief of Appeals (argued), Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, for U.S. in Nos. 92-2796 and 92-2798.

William R. Hogan, Office of the United States Attorney, Criminal Division, Barry Rand Elden, Chief of Appeals (argued), Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, for U.S. in No. 94-1517.

Jerry B. Kurz (argued), Hall & Kurz, Chicago, IL, for Edward S. Williams.

Carl P. Clavelli (argued), Chicago, IL, for Jerome A. Crowder.

Robert G. Clarke (argued), Chicago, IL, for Thomas L. Bates.

Donald Paull, Robert G. Clarke (argued), Chicago, IL, for Louis Hoover.

Richard C. Leng, Leng, Stowell, Friedman & Vernon, Kent R. Carlson (argued), Chicago, IL, for Bernard Green.

Keith Spielfogel, Robert G. Clarke (argued), Chicago, IL, for Roland Lewis.

Before POSNER, Chief Judge, and MANION and DIANE P. WOOD, Circuit Judges.

POSNER, Chief Judge.

The El Rukns were a street gang active on Chicago's south side for two decades ending in the late 1980s. The gang's main activity was the sale of illegal drugs. Its members committed many murders, and engaged in much other violence, in the turf wars that are endemic to the trade in illegal drugs. The trial from which these appeals come to us was the last of five trials in the Northern District of Illinois of different leaders of the El Rukns. The defendants in this trial as in the other ones were convicted and sentenced to long prison terms. But the convictions in all four of the previous trials were later set aside by the trial judges when it became known that the government had knowingly employed perjured testimony in the trials and concealed from the defense the favors that it had showered on the former members of the gang who were the government's key witnesses. Only one of the grants of a new trial was appealed and we affirmed it in United States v. Boyd, 55 F.3d 239 (7th Cir.1995). In the present case, the fifth as we have said, the district judge refused to grant a new trial even though he had before him the identical evidence of the government's misconduct. In addition to appealing the denial of their motion, the defendants appeal a number of rulings made during the trial itself, but we begin with the denial of the motion for a new trial as it is the issue that is pressed hardest.

With four sets of defendants, all accused of participation in the same conspiracy, having been granted new trials because of identical prosecutorial misconduct, denial of the same relief to this fifth set of defendants strikes a discordant note. But the potential for such incongruity is present whenever persons charged with a joint offense are tried separately, as they usually very much desire to be--or for that matter whenever they are tried together, since it is always possible for a jury to exercise lenity and acquit some of the defendants while convicting others who are in fact no more guilty, and when this happens the convicted defendants have no remedy. United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984); United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134, 135-36, 88 L.Ed. 48 (1943). Such incongruities are built into the American system of criminal justice and can have no weight in our decision whether to reverse the denial of a new trial to the present defendants.

Another point that is difficult for nonlawyers to understand or accept is that because the question whether to grant a new trial is committed to the discretion of the district judge, as the defendants rightly concede, United States v. Knox, 68 F.3d 990, 1000 (7th Cir.1995); United States v. Maloney, 71 F.3d 645, 654 (7th Cir.1995), it is possible for two judges, confronted with the identical record, to come to opposite conclusions and for the appellate court to affirm both. That possibility is implicit in the concept of a discretionary judgment. Rice v. Nova Biomedical Corp., 38 F.3d 909, 918 (7th Cir.1994). If the judge could decide only one way he would not be able lawfully to exercise discretion; either he would be following a rule, or the circumstances would be so one-sided that deciding the other way would be an abuse of discretion. If the judge can decide either way because he is within the zone in which he has discretion--can decide either for or against the grant of a new trial--this implies that two judges faced with the identical record could come to opposite conclusions yet both be affirmed.

When we affirmed Judge (now Chief Judge) Aspen's grant of a new trial to the defendants in the Boyd case, we went out of our way to make clear that we were affirming not because we thought he necessarily was right but because we thought he was reasonable, that he had not "abused his discretion." United States v. Boyd, supra, 55 F.3d at 245. Because we found no abuse of discretion in his having granted a new trial we had no occasion to decide whether we would also have affirmed him had he denied a new trial or whether, on the contrary, it was one of those one-sided cases where only one ruling is possible. So the fact that Judge Mills on a record very similar, though as we are about to see not identical, to that before Judge Aspen made the opposite ruling does not necessarily require, as a matter of maintaining consistency with our decision in Boyd, that we reverse Judge Mills.

Rather than speculate on what we would have done had Judge Aspen decided the other way, let us see whether Judge Mills can be said to have been acting unreasonably when he held that the defendants in this case had not been denied a fair trial by the totality of the government's misconduct. The misconduct arose out of the abnormal, and deeply questionable, generosity and solicitude that the government displayed toward its key witnesses, former El Rukns confined in the Metropolitan Correctional Center, the federal jail in Chicago. The government knew that some of these witnesses were lying when they testified that they had stopped using drugs after being arrested in 1988. Partly because the government, as one dimension of its friendly treatment of these witnesses, allowed "contact visits" with members of their families, the witnesses obtained drugs while in jail--even dealt drugs--as the government well knew. Knew, but made no effort to correct the witnesses' lying denials to the jury. And members of the prosecutorial team gave presents to the witnesses, allowed them the free use of telephones to make long-distance calls for themselves and their friends, allowed conjugal visits in the prosecutors' offices, and even threw parties for the witnesses. None of these favors was disclosed to the defense, even though they could have been used to impeach the witnesses' credibility. The government's failure to disclose these things was a violation of the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); see Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); Kyles v. Whitley, --- U.S. ----, ----, 115 S.Ct. 1555, 1565, 131 L.Ed.2d 490 (1995), while its knowing use of false testimony to convict was, of course, also improper. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959); United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976).

But these improprieties justify granting a new trial only if there is a "reasonable likelihood" that they "affected the judgment of the jury," Giglio v. United States, supra, 405 U.S. at 154, 92 S.Ct. at 766, or, in other words, only if they "undermine[d] confidence in the verdict." Kyles v. Whitley, supra, --- U.S. at ----, 115 S.Ct. at 1566; see also United States v. Agurs, supra, 427 U.S at 103, 96 S.Ct. at 2397; United States v. Bagley, supra, 473 U.S. at 678, 105 S.Ct. at 3381-82; United States v. Silva, 71 F.3d 667, 670 (7th Cir.1995); United States v. Boyd, supra, 55 F.3d at 243. The defendants argue that had the jury known that the government had lavished benefits so many and so irregular on the witnesses, it would have refused to believe their testimony--testimony essential to the conviction of the defendants. It would have thought that the government had bought their testimony, or alternatively that the government had doubted their truthfulness and was desperate therefore to keep them in an accommodating mood so that they would testify as the government wanted. If the defendants' argument is correct, confidence that the trial produced a correct verdict would indeed be undermined.

However, the standard that we have articulated requires first the district judge, and then this court in reviewing his ruling for possible abuse of discretion, to examine the trial record as a whole, considering not only the parts of the record infected by the government's improprieties but also the untainted evidence that the jury heard. Although it is not enough that the untainted evidence be sufficient for conviction, Kyles v. Whitley, supra, --- U.S. at ---- n. 8, 115 S.Ct. at 1566 n. 8, that evidence must not be ignored in the making of the determination whether there is a reasonable likelihood that the outcome would have been different had the government not...