UNITED STATES of America, Plaintiff-Appellant,

Jeff BOYD, et al., Defendants-Appellees.
United States Court of Appeals,
Seventh Circuit
55 F.3d 239 (1995)

 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. § 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.*242 1993) (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.

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