In the
United States Court of Appeals
For the Seventh Circuit
No. 09-4043
U NITED S TATES OF A MERICA,
Plaintiff-Appellant,
v.
R ONDELL F REEMAN, a/k/a Nightfall, a/k/a Fall, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 CR 843—Joan Humphrey Lefkow, Judge.
A RGUED S EPTEMBER 30, 2010—D ECIDED JUNE 17, 2011
Before F LAUM, M ANION, and T INDER, Circuit Judges.
M ANION, Circuit Judge. After a five-week trial, four
defendants were convicted of various drug crimes. The
district court later found that the government’s star
witness had testified falsely, that the government
knew this testimony was false, and that the govern-
ment relied upon it to secure the defendants’ convictions.
The district court then granted a new trial, and the gov-
ernment appeals. Because the record fully supports
the district court’s findings that the government know-
2 No. 09-4043
ingly used false testimony and that this testimony
affected the jury’s verdict, we affirm.
I.
For several years, the government investigated the drug
trade in the now-razed Cabrini Green public housing
projects. Using video surveillance, garbage pulls, con-
trolled buys, and confidential informants, the govern-
ment gathered evidence and later secured an indict-
ment against fifteen individuals for various drug-
related crimes, including one overarching conspiracy.
Ten pleaded guilty, and five went to trial. Of those that
went to trial, one was acquitted and the others were
convicted of several charges, including the conspiracy
charge.
At trial, the government presented a bold case. It
alleged that Rondell Freeman was poised at the top of a
large drug-trafficking ring. He supplied the drugs and
with his lieutenants controlled Cabrini Green’s drug
trade—the government claimed that no one could sell
drugs there without his approval. This was by no means
a small operation. Freeman was supposed to have pur-
chased over a kilogram of cocaine a week, which he turned
into crack and sold in retail quantities. While no exact
figure was produced at trial, one witness speculated that
this practice would net Freeman as much as $140,000
a week.
Of course an operation of this size requires help.
The government alleged that the co-defendants, Brian
Wilbourn, Daniel Hill, and Adam Sanders, all served as
No. 09-4043 3
Freeman’s subordinates, but with a twist. While they
all worked for Freeman sometimes selling his drugs at
retail, they each also had their own business that
competed with, yet was still tied to, Freeman’s control
and supply of drugs. So, although Freeman would take
cocaine and make it into his own “brand” of crack that
was sold at retail by his lieutenants, Wilbourn and others
would also buy cocaine from Freeman, cook it, and then
sell it at retail as well.
Naturally the defendants denied these allegations.
Freeman, for his part, did not have much of a defense;
he simply put the government to its burden. The others
had a different trial strategy: they candidly admitted
to dealing drugs but claimed they did so on a very
small scale, as independent contractors and not as part
of Freeman’s operation. In doing so, they denied being
tied to him in any way but friendship.
For its part, the government’s physical evidence
was buttressed by the testimony of three significant,
cooperating witnesses. Ralph LaSalle was Freeman’s
supplier; he testified that Freeman bought at least one
and sometimes more than two kilograms of cocaine a
week between 2000 through 2005. Demarquis Williams,
a co-defendant, worked for Freeman and testified about
Freeman’s stranglehold over Cabrini Green. The most
important testimony, however, came from another co-
defendant, Seneca Williams—the central figure in this
appeal.
For years Seneca Williams served as Freeman’s bagger,
a fairly low-level position. In it, Williams would take
4 No. 09-4043
the large chunks of crack cocaine that formed when
the powder is “cooked,” and then break and bag it into
retail-sized “rocks.” Despite such a menial role, he
knew much about the operation. He testified about how
the operation began and how it grew; he testified about
the code words and the drug houses used; and he
testified about how Wilbourn, Hill, and Sanders were
placed within the operation.
Williams was, however, sketchy on dates, so the
timeline for his testimony was based on seasons and
landmarks. This is a brief summary of his pertinent
testimony.
• Williams was released from prison in February
2002 and returned to Cabrini Green in late spring
to early summer of that year.
• Sometime during that summer, he asked Freeman
if he could start bagging again.
• Sometime later, he started bagging at an apart-
ment on 95th and Halsted.
• Three or four months later, when it was “going
into winter,” he began bagging at an apartment on
35th and King Drive.
• The operation then moved to the second floor of an
apartment in the Granville building, where it
remained until early winter of 2003.
• A few months later, the operation moved to the
top floor of the Granville building, to an apartment
known as the “penthouse.”
No. 09-4043 5
Williams testified at length about the penthouse, fre-
quently placing Wilbourn there with Freeman and others
discussing the drug trade. This included testimony
about the defendants “branding” their respective types
of crack. This was a particularly damning piece of testi-
mony.
It was just one day Rondell Freeman was having
Brian Wilbourn came [sic] in. They had a big bag
of seals, all—different kinds, blue devil, blue stripe,
and orange stripe.
Then they was talking about how this person
who picked color—what their color was. Brian
Wilbourn had the orange stripe. Royce Hatter had
the blue stripe. And Rondell Freeman stuck with the
blue devil.
Rondell1 then stated that he was going to stop
around with the orange stripes, that he would
surprise people with the new crack bag and saying
that he was going to make new clientele, sell—I guess
sell a lot. And Royce Hatter was saying he was
going to do the same thing with the blue stripes.
Rondell Freeman was saying that can’t nothing
mess with the blue devil label.
Williams’s testimony about the penthouse went beyond
that excerpt and provided some of the most detailed
1
From the context of the testimony, it seems that this refer-
ence to Rondell should be to Wilbourn. Our quote, however,
reflects the record.
6 No. 09-4043
evidence of Freeman’s operation and the other defen-
dants’ role in it.
There was, however, a problem with Williams’s testi-
mony about the penthouse, particularly Wilbourn’s
presence and actions there. From Williams’s testimony and
the government’s other evidence, it is clear that the pent-
house was used exclusively in 2003. But Wilbourn was
in prison from 2002 until 2005, giving him an obvious alibi.
And this alibi wasn’t a surprise for the government.
After reading Williams’s grand jury testimony, Wil-
bourn’s attorney sent the prosecutors a letter letting
them know that Wilbourn was in prison during the time
Williams placed him in the penthouse. For some rea-
son—never articulated—the government plowed ahead
and still had Williams testify. It solicited testimony
about Wilbourn’s presence at the penthouse; it even
encouraged Williams to specifically detail Wilbourn’s
participation in Freeman’s operation there—including the
testimony quoted above. What’s more, when Wilbourn’s
attorney began cross-examining Williams about the
impossibility of Wilbourn being at the penthouse, the
prosecutor objected, stating in the presence of the jury
“Objection. That’s not true.”
The court overruled the objection, but later noted it
“forcibly muted what might otherwise have been [a]
devastating impeachment.”
At the time, the government disputed that Wilbourn
had been in prison during this period. The prosecutors
felt that Wilbourn’s arrest and incarceration records
No. 09-4043 7
were unclear on his time in prison. They are not. That
aside, the government did not resolve this issue before
trial. Nor did it quickly attempt to clarify the conflict
when it was raised during the trial. Eventually near the
end of the trial and without further comment or
testimony, it stipulated that Wilbourn was in prison
from April 2002 until September 2005. And at the close
of the government’s case, the stipulation was read to
the jury—twelve days after Williams testified.
Despite the certainty the stipulation provided, prob-
lems stemming from Williams’s testimony arose again
during closing arguments. In its summation, the govern-
ment still relied on his testimony for a number of
factual issues, including connecting Wilbourn to the
conspiracy through his use of the orange-striped bags.
It also used the rebuttal portion of closing argument to
confuse rather than clarify the time conflict in Williams’s
testimony. It argued that Williams had not lied about
Wilbourn and the others at the penthouse—Williams
was just imprecise or mildly mistaken about the dates
(and presumably the location) on which some events
occurred. In essence, it claimed Williams’s testimony
about the penthouse was, in fact, true—it just happened
earlier than he claimed, and in a different place.
During that line of argument, the court sustained
several objections from the defense. And it informed
the government that its argument was both inaccurate
and an attempt to bolster Williams’s testimony. The
court later found that this constituted prosecutorial
misconduct.
8 No. 09-4043
The jury eventually convicted four of the five de-
fendants on various charges, including the conspiracy
charge. The defendants were, however, acquitted of
several others. After the verdict, the defendants moved
for a new trial, arguing that Williams’s false testimony
violated their due process rights. In a very thorough
order, the district court agreed and granted the de-
fendants a new trial on count 1, the conspiracy charge. It
also granted Wilbourn a new trial on counts 10 and 11,
and Freeman a new trial on count 11—counts 10 and 11
were charges of possession with intent to distribute.
Concerning those counts, it found that the prosecutor’s
misconduct during closing argument affected the verdict.
II.
When the government obtains a conviction through
the knowing use of false testimony, it violates a defen-
dant’s due process rights. Napue v. Illinois, 360 U.S. 264,
269 (1959); United States v. Bagley, 473 U.S. 667, 679 n.8
(1984) (discussing the evolution of the rule in Napue).
To obtain a new trial, the defendant must establish:
(1) that there was false testimony; (2) that the government
knew or should have known it was false; and (3) that
there is a likelihood that the false testimony affected the
judgment of the jury. United States v. Saadeh, 61 F.3d
510, 523 (7th Cir.1995). The district court found all three
criteria and granted the defendants a new trial, and we
review that decision for an abuse of discretion. United
States v. Are, 590 F.3d 499, 508 (7th Cir. 2009). The
district court abuses its discretion when it makes an
No. 09-4043 9
error of law or when it makes a clearly erroneous
finding of fact. United States v. Tingle, 183 F.3d 719, 728
(7th Cir. 1999).
A.
There are several layers to the government’s argu-
ment on appeal. As an initial point, it argues that the
district court misapplied Napue, because Napue only
applies when the truthfulness of a witness’s testimony
can be verified or refuted. It characterizes Williams’s
testimony as a choice between competing inferences,
“rather than a matter of demonstrable truth or falsity.”
And it argues that since the truth of Williams’s testi-
mony cannot be verified or refuted, the possibility
remains that he was mistaken. Thus, under its under-
standing, Napue does not apply. The government also
argues that Seneca Williams did not testify falsely and
that the district court erred by finding Williams’s testi-
mony was false.
There are two problems with the government’s argu-
ment. First, it does not acknowledge or understand
the effect that stipulating to Wilbourn’s prison sentence
had on its evidence. See Wright & Miller, 22 Fed. Practice
& Proc.: Evidence § 5194 (1st ed. 1978); see also Keller
v. United States, 58 F.3d 1194, 1199 n.8 (7th Cir. 1995).
Williams puts Wilbourn in one place when he discusses
the drug trade and the branding of the crack: the pent-
house. But the penthouse was only used in 2003. On cross-
examination, Williams did not equivocate or waver on
this; he stuck to his story: Wilbourn was at the pent-
10 No. 09-4043
house, dealing drugs, and splitting up the Cabrini
Green drug trade with Freeman. And after finally stipu-
lating that Williams’s testimony was inaccurate—nothing
could have occurred with Wilbourn at the penthouse—
the government did not re-call Williams for him
to provide an explanation. To be clear, there was no
testimony that any of the events that Williams testified
about taking place in the penthouse took place else-
where or at another time.
In fact, it was not until the prosecutor’s statements at
closing argument that the jury heard that Williams
was mildly mistaken and the events described at the
penthouse really took place one year earlier, in a dif-
ferent location. See Seventh Circuit Pattern Instruction
1.06 (instructing that “the lawyers’ statements to [the
jury] are not evidence.”); accord Whiting v. Westray, 294
F.3d 943, 946 (7th Cir. 2002). In its order, the district court
rejected the government’s argument on this point as a
“glib assertion.” And we agree. The stipulation estab-
lishes that Wilbourn was never in the penthouse. If he
had never been there, those conversations could not
have taken place—there is no competing inference from
such an impossible event. Therefore, the evidence fully
supports the district court’s finding that Williams’s
testimony was false.
Second, the government’s legal argument misconstrues
the holding in Napue and our precedent. The govern-
ment seizes on several cases where we have upheld the
denial of a motion under Napue when there were con-
tradictions in testimony. Saadeh, 61 F.3d at 523; United
No. 09-4043 11
States v. Smith, 223 F.3d 554, 574 (7th Cir. 2000); Simental
v. Matrisciano, 363 F.3d 607, 615 (7th Cir. 2004). It argues
that those cases dictate that Napue is inapplicable when
there can be competing inferences about whether a
witness is lying. That is, Napue only applies when the
truth or falsity of the testimony can be established.
The government’s argument is misplaced. For one,
Williams’s false testimony was conclusively established.
But even if weren’t, none of those cases limits a de-
fendant’s due process rights to situations where it can be
conclusively established that the government witness
was lying. In fact, we have held the opposite. In Boyd, we
noted that Napue does not require that the witness could
be successfully prosecuted for perjury. United States v.
Boyd, 55 F.3d 239, 243 (7th Cir. 1995). In this area of the
law, the governing principle is simply that the prosecutor
may not knowingly use false testimony. This includes
“half-truths” and vague statements that could be true in
a limited, literal sense but give a false impression to the
jury. Id. (“It is enough that the jury was likely to under-
stand the witness to have said something that was, as
the prosecution knew, false.”). To uphold the granting
of a new trial, there does not need to be conclusive
proof that the testimony was false or that the witness
could have been prosecuted for perjury; all that matters
is that the district court finds that the government has
knowingly used false testimony. Thus, we reject the
government’s argument that a claim under Napue can
only be made when it can be established that the wit-
ness is lying.
12 No. 09-4043
B.
The central issue then becomes whether the govern-
ment knew or should have known that Williams’s testi-
mony was false. Saadeh, 61 F.3d at 523. On this point, it is
obvious that when the government received the letter
from Wilbourn’s attorney, it knew there were problems
with Williams’s testimony—problems that it should
have cleared up well before Williams was allowed to
testify.
The government’s duty to assure the accuracy of its
representations has been well stated, many times before.
Berger v. United States, 295 U.S. 78, 88 (1935); Alcorta
v. Texas, 355 U.S. 28, 31 (1957); United States ex rel. Wilson
v. Warden Cannon, 538 F.2d 1272, 1277 (7th Cir. 1976);
see also United States v. LaPage, 231 F.3d 488, 492 (9th Cir.
2000) (“A prosecutor has a special duty commen-
surate with a prosecutor’s unique power, to assure that
defendants receive fair trials.”). This means that when
the government learns that part of its case may be inac-
curate, it must investigate. United States v. Price, 566
F.3d 900, 910 n.11 (9th Cir. 2009) (noting “[w]hen a prose-
cutor suspects perjury, the prosecutor must at least in-
vestigate further” (quotation omitted)). It cannot simply
ignore evidence that its witness is lying. See United
States v. Young, 20 F.3d 758, 764 (7th Cir. 1994) (noting “a
prosecutor’s office cannot get around Brady by keeping
itself in ignorance” (quotation omitted)); United States v.
Wallach, 935 F.2d 445, 457 (2d Cir. 1991) (“We fear that
given the importance of [the witness’s] testimony
to the case, the prosecutors may have consciously avoided
No. 09-4043 13
recognizing the obvious—that is, that [the witness]
was not telling the truth.” (emphasis added)). Here, the
government abdicated its responsibility by failing to in-
vestigate and determine whether Wilbourn could
have been at the penthouse as Williams claimed he was.
This notice of Wilbourn’s incarceration establishes
that the government should have known that Williams’s
testimony was false. Even more, once the government
finally stipulated that Wilbourn was in prison the
entire time the penthouse was used, that meant the gov-
ernment knew Williams’s testimony was false. Yet
despite first using and then admitting that Williams’s
testimony was false, the government relied on it
during closing arguments. In sum, the district court did
not err in finding that the government knowingly used
false testimony.
C.
Since Williams’s testimony was false and the govern-
ment knew or should have known it was false, the
issue becomes whether the district court erred in
finding that there was a “reasonable likelihood that the
false testimony could have affected the judgment of the
jury.” Griffin v. Pierce, 622 F.3d 831, 841-42 (7th Cir. 2010)
(quoting United States v. Agurs, 427 U.S. 97, 103 (1976)).
This standard is much friendlier for defendants and
“sets a lower threshold for determining materiality.” Braun
v. Powell, 227 F.3d 908, 920 & n.11 (7th Cir. 2000) (dis-
cussing the distinction and surveying cases); United
States v. Morris, 498 F.3d 634, 640 (7th Cir. 2007) (noting
14 No. 09-4043
the standard for false testimony is “[t]he easier standard
for the defendant to meet”). The diminished burden
reflects the fact that the knowing use of false testimony
corrupts “the truth-seeking function of the trial process.”
Agurs, 427 U.S. at 104; accord Bagley, 473 U.S. at 680. At
this point in the analysis, we also weigh whether the
defendants had an adequate opportunity to expose the
false testimony on cross-examination. Saadeh, 61 F.3d
at 523; Shasteen v. Saver, 252 F.3d 929, 933 (7th Cir. 2001).
Given all the evidence in this case, granting a new
trial is a difficult question. But we re-emphasize our
standard of review: The issue is not whether we are
convinced that the defendants are guilty but whether
the district court clearly erred when it determined that
there was any reasonable likelihood that Williams’s
false testimony affected the verdict. Powell, 227 F.3d at
920. In a trial like this, much of what occurred in the
courtroom can be lost in the transcript. Compared to
the trial judge who handled all the evidence, our under-
standing of the testimony and its impact is limited. We
can’t see the witnesses, and we have no idea how the
jury reacted to them: what we may dismiss as a
clumsy moment on the transcript could very well be a
clever piece of advocacy, delivered at a pivotal moment
in the trial. See United States v. Van Eyl, 468 F.3d 428, 436
(7th Cir. 2006). For five weeks, the district judge listened
to this case; she had a feel for it that we can’t replicate,
and that fact is not lost in our review of her decision.
Boyd, 55 F.3d at 242.
The government argues that since Williams was cross-
examined extensively and it stipulated about Wilbourn’s
No. 09-4043 15
time in prison, the jury knew about Williams’s false
testimony. Thus, his false testimony could not have
affected the jury. In the judge’s order, she addressed
both of these arguments. Concerning the cross-examina-
tion of Williams, she noted that “[w]hen Wilbourn’s
counsel attempted to confront Williams with the dates
of Wilbourn’s incarceration [] the government objected,
stating, ‘Objection. That’s not true.’ ” And this improper
objection “forcibly muted what might otherwise have
been [a] devastating impeachment.” Concerning the
stipulation, the judge found that it did not cure the
false testimony. It was read twelve full days after Wil-
liams’s testimony and at the end of a tedious, five-week
trial. Given the judge’s view of the trial, we cannot con-
clude that she clearly erred in finding that the stipula-
tion and the cross-examination did not cure the harm
of Williams’s false testimony.
Nor do we agree with the government that the evi-
dence was so overwhelming that it was unreasonable
for the district court to find that Williams’s false
testimony affected the verdict. To be sure, there was
much evidence of the defendants’ guilt, some of it very
strong. After all, the defendants did candidly admit to
being drug dealers. But despite that, there were three
critical impressions affecting the evidence that inform
our holding. First, when reading the transcript and the
judge’s order there is an impression that the case
promised by the government—a large and profitable
conspiracy—was not what it delivered. Second,
Williams’s testimony filled in many necessary details
that gave flesh and context to the government’s evi-
16 No. 09-4043
dence. Third, the other parts of the government’s case
were not so strong that Williams’s testimony was mere
surplusage.
The government claimed that Freeman was a kingpin,
taking a kilo or two of cocaine a week—sometimes
more—and turning it into Cabrini Green’s retail market.
Yet the evidence did not fully support this claim. This
was unlike the previous cases concerning control of
Cabrini Green, with the hierarchy, wealth, and power
exercised by the Gangster Disciples. E.g., United States
v. Jackson, 207 F.3d 910 (7th Cir. 2000); Smith, 223 F.3d
at 560-62; United States v. Wilson, 237 F.3d 827, 830 (7th
Cir. 2001). When the police officers made several con-
trolled stops of Freeman and his associates, sometimes
hoping to find the defendants with bags of money, they
had a few hundred or a thousand dollars on them. Simi-
larly, the recorded phone calls were not those of kingpins
controlling large areas of vice; rather, they bordered on
the comical. At one point at the height of Freeman’s
“empire,” he was recorded calling around trying to
scrounge up five dollars from several associates. The
same can be said of the other defendants and the evi-
dence against them. Indeed, the transcript does not
reveal the markings of the operation the government
alleged.
And while there was certainly evidence of drug dealing
going on, much of the strongest evidence that Freeman
was in league with these defendants in this massive con-
spiracy came from Seneca Williams—he was the inside
man. His testimony made up for some of the other defi-
No. 09-4043 17
ciencies in the government’s case. Indeed, his testimony
about Wilbourn and Sanders, supposedly at the pent-
house, gave them a prominent role in the conspiracy,
far beyond the impression that any other testimony
created.
Moreover, the transcript does not reveal evidence so
overwhelming that Williams’s testimony could be
viewed as mere surplusage. United States v. Beck, 625
F.3d 410, 421-22 (7th Cir. 2010). The defense attorneys’
cross-examination was, at times, effective in qualifying,
minimizing, or casting doubt on the testimony of
Demarquis Williams and Ralph LaSalle. Indeed, all of
the testimony and evidence here does not strongly con-
vince us that the district court was mistaken in finding
that Williams’s false testimony affected the defendants’
convictions on the conspiracy charge. 2 Accordingly, the
district court did not abuse its discretion by granting
the defendants a new trial on that count.
2
Our statement on the evidence should not be read as
touching on the ultimate issue of whether the district court
erred in denying the defendants’ motions for judgment of
acquittal at the close of the evidence. This is the govern-
ment’s interlocutory appeal and our jurisdiction is limited to
whether the district court erred in granting a new trial. See
United States v. Eberhart, 388 F.3d 1043, 1051-52 (7th Cir. 2004),
rev. on other grounds, 546 U.S. 12 (2005). The question about
denying defendants’ motion for judgment of acquittal will
be fully addressed later, if the government decides to re-try
the defendants. See United States v. Taylor, 176 F.3d 331, 335
(6th Cir. 1999).
18 No. 09-4043
III.
The government also appeals the granting of the new
trial for Wilbourn on count 10 and for both Freeman and
Wilbourn on count 11. Williams’s role in these counts
amounted to translating the codes that were being used
by Wilbourn and Freeman during some recorded con-
versations. These recorded conversations served as the
principal evidence against them on these counts. The
district court found that the verdict on those counts was
affected by the government’s bolstering of Williams’s
false testimony during closing argument. To be clear, no
one suggests that Williams’s testimony concerning
those counts was false.
The district court has broad discretion in deciding
whether to grant a new trial based on prosecutorial
misconduct. United States v. Cheska, 202 F.3d 947, 949-
50 (7th Cir. 2000). The inquiry is two-fold: first, whether
there was prosecutorial misconduct; second, whether
it prejudiced the defendant. United States v. Serfling, 504
F.3d 672, 677 (7th Cir. 2007). The district court found
that the prosecutor’s comments during closing argument,
that Williams was truthful about his testimony but mis-
taken on the dates, was improper. See United States v.
White, 222 F.3d 363, 370 (7th Cir. 2000) (noting “[a]rgument
referencing facts not in evidence is clearly improper”).
We agree. The comment was not only inaccurate, it also
gave the impression that the prosecutor knew some-
thing outside the evidence—namely, that Williams had,
outside the presence of the jury, clarified his position and
that it was now clear that he was just mistaken on the
No. 09-4043 19
dates. This was, to say the least, improper. Morris, 498
F.3d at 642 (noting a “prosecutor may not imply that
facts not before the jury lend a witness credibility”).
To determine whether the district court erred in
finding those comments prejudiced Wilbourn and Free-
man, we look at several factors, including the efficacy
of curative instructions, the defendant’s opportunity to
rebut the false statements, and the weight of the evi-
dence. United States v. Corley, 519 F.3d 716, 727 (7th Cir.
2008) (listing all six factors). But “[u]ltimately, the
inquiry turns on whether the improper statement so
infected the trial with unfairness as to make the re-
sulting conviction a denial of due process.” Id. (quotation
marks and citation omitted). Again, we reverse only if
we have a “strong conviction of error.” Cheska, 202 F.3d
at 950 (quotation omitted).
The comments at issue were made during the rebuttal
portion of the government’s closing argument, so there
was no opportunity for the defense to counter the state-
ment. And a curative instruction would have had
little effect. Indeed, even if the prosecutor’s statements
were the product of gross negligence, rather than an
intentional act, we fully agree with the district court that
in a case like this, the harm was not cured—instead it
left an indelible impression on the jury. While there was
other evidence to support Wilbourn’s and Freeman’s
convictions on counts 10 and 11, Williams’s testimony was
a substantial part of the evidence: he translated the code
and told the jury precisely what the defendants were
discussing on the tapes. In other words, his credibility
20 No. 09-4043
was important to the government’s proof. Thus, the
district court’s findings are well supported in the record,
and it was not an abuse of discretion to grant the defen-
dants a new trial on these counts as well.
IV.
After a full review of the record, we hold that the
district court did not err in finding that the government
knowingly used false testimony and that there was a
reasonable likelihood that the false testimony affected
the jury’s verdict on the conspiracy charge. Nor did the
district court abuse its discretion in granting the defen-
dants a new trial. In addition, the district court did not
abuse its discretion by granting a new trial for the
counts affected by the government’s statements made
in closing arguments. Accordingly, the judgment of the
district court is affirmed.
6-17-11