by
Mark D. Hosken, Supervisory Assistant Federal Public Defender.
Western District of New York

What should happen when the government knowingly introduces a witness’ false testimony in a trial. That question was recently before the Seventh Circuit in United States v. Freeman, No. 09-4043, ___ F.3d ___ (7th Cir. June 17, 2011). There, the panel affirmed the District Court’s order granting the defendant a new trial. While taking place in the Seventh Circuit, the panel’s holding serves as a reminder as to what defense counsel should do if you are faced with the government introducing testimony known to be false.

In Freeman, an individual charged in a multi-defendant drug conspiracy decides to cooperate, and testifies before the grand jury. He told the grand jury that he participated in the drug conspiracy by mixing and bagging up the drugs for one of the other defendants, and explains how the other defendants fit into the operation. He chronicles his meetings with the defendants and the occasions when he witnessed them together. He testifies to a specific time frame (2003) when he saw all of the defendants at a specific location known as the “penthouse.” That testimony was not true. It was undisputed that one of the defendants, Brian Wilbourn, was incarcerated during a three and a half year period (between 2002 and 2005) when the witness claimed he was present while the defendants were bagging drugs at a specific location.

Defense counsel reviews the witness’ grand jury testimony while preparing for trial. He notifies the government that his client could not have been seen with the other defendants as the witness claimed because his client was incarcerated. As the Seventh Circuit panel noted, “the government plowed ahead and still had [its witness] testify. It solicited testimony about Wilbourn’s presence at the penthouse; it even encouraged [its witness]to specifically detail Wilbourn’s participation in [the] operation there. . . . What’s more, when Wilbourn’s attorney began cross-examining [the witness] about the impossibility of Wilbourn being at the penthouse, the prosecutor objected, stating in the presence of the jury, ‘Objection. That’s not true.’” Freeman, 2011 WL 2417091, at *2-3.

Near the end of the trial the government stipulated that that Wilbourn was in prison from April 2002 until September 2005. Twelve days after the government’s witness testified, the stipulation was read to the jury. Notwithstanding the stipulation, the government relied on its witness’ testimony during its closing argument. According to the government, its witness did not lie during his testimony. Rather, the government argued that he was just imprecise or mildly mistaken about the dates on which some events occurred.

The District Court sustained several defense objections, and informed the government that its argument was both inaccurate and an attempt to bolster its witness’ testimony. The District Court later determined that this constituted prosecutorial misconduct. The defendants were ultimately found guilty of the conspiracy charge. However, the defendants moved for a new trial on the ground that the false testimony of the government’s witness violated their due process rights. The District Court agreed.

In Freeman, 2011 WL 2417091, a 7th Circuit panel affirmed the district court’s grant of a new trial. Relying on the Supreme Court’s holdings in Napue v. Illinois, 360 U.S. 264 (1959), United States v. Bagley, 473 U.S. 667 (1984), and United States v. Agurs, 427 U.S. 97 (1976), the panel upheld the district court’s determination that there was a reasonable likelihood that the false testimony could have affected the jury’s judgment and that if not for the improprieties, the defendants would have been acquitted.

More importantly, the panel extended the government’s duty beyond merely determining the accuracy of its claims. Now, the government must not forgo its duty to investigate its witnesses.

The government’s duty to assure the accuracy of its representations has been well stated many times before. . . . This means that when the government learns that part of its case may be inaccurate, it must investigate. . . . It cannot simply ignore evidence that its witness is lying. . . . Here, the government abdicated its responsibility by failing to investigate and determine whether (the defendant) could have been (where the witness) claimed he was.

2011 WL 2417091 *5. (internal cites omitted).

In United States v. Agurs, 427 U.S. 97 (1976), the Supreme Court explained that the rule of Brady v. Maryland, 373 U.S. 83 (1963), applied in different situations. The first being those instances when the prosecution knew or should have known about perjured testimony. These situations are fundamentally unfair. Convictions obtained therein must be set aside. This requires a finding that there existed a reasonable likelihood that the false testimony could have affected the jury’s judgment. Agurs, 427 U.S. at 103.

The Second Circuit has applied the Agurs analysis to set aside convictions when the government’s witnesses have presented perjured testimony. See, United States v. Mele, 462 F.2d 918 (2d Cir. 1972) (the government’s deceit including untruthful testimony, deliberate excisions from reports, preparation of false reports and repeated misrepresentations required a new trial); Perkins v. LeFevre, 691 F.2d 616 (2d Cir. 1982) (the prosecution’s failure to provide the witness’ rap sheet to the defense after the witness denied any convictions which were recorded on his criminal history resulted in the granting of a writ of habeas corpus.); United States v. Wallach, 935 F.2d 445 (2d Cir. 1991) (the perjury of the government’s witness required a reversal of the convictions when the government in redirect and in closing argument made much of the witness’ motive for telling the truth.); United States v. Vozzella, 124 F.3d 389 (2d Cir. 1997) (the government’s use of business record evidence that it knew contained fictitious entries, and according to its author were false in their entirety, required reversal when the government conducted no further inquiry into the veracity of the records.); Jenkins v. Artuz, 294 F.3d 284 (2d Cir. 2002) (the prosecutor’s failure to correct the record in spite of the witness’ false testimony and her argument in summation relying on that false testimony was sufficient basis to grant a writ of habeas corpus); and Drake v. Portuondo, 553 F.3d 230 (2d Cir. 2009) (the prosecutor knowingly elicited false statements from a witness and did not correct the record when the witness testified falsely about conversations he had with the prosecutor - this was sufficient to grant a writ of habeas corpus.).

The importance of the Freeman decision is the imposition of a duty on the prosecutor to investigate his/her witnesses. The government’s counsel may no longer contend “I didn’t know,” or “the witness was simply mistaken,” or “the defense attorney had a sufficient opportunity to cross examine the witness.” Defense counsel should put the government on notice of a witness’ perjury, record proper objections, and challenge the government’s failure to correct the record. Building on the Supreme Court decisions and adding the direction in Freeman, counsel should argue the government’s failure to fully investigate its witnesses is a sufficient basis to set aside a conviction, obtain a new trial or otherwise secure a dismissal in the appropriate criminal prosecution.