09-4043 U.S. v. Freeman

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Criminal Procedure
New trials; prosecutorial misconduct

Where the government knowingly presented false testimony, the district court properly granted the defendant a new trial.

“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 statement.

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 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 defendants a new trial on these counts as well.”

Affirmed.

09-4043 U.S. v. Freeman

Appeal from the United States District Court for the Northern District of Illinois, Lefkow, J., Manion, J.

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