United States v. Guy Westmoreland
2013 U.S. App. LEXIS 5832
| 7th Cir. | 2013Background
- Westmoreland was convicted in two trials: drug conspiracy (Westmoreland I) and murder-related charges (Westmoreland II).
- The government learned of an affair between Milkovich, a lead investigating agent, and Westmoreland’s wife, Bronnie, during the Westmoreland II proceedings.
- Milkovich did not testify in Westmoreland II; Bronnie testified and the affair was later investigated separately.
- Westmoreland moved for a new trial under Rule 33 on October 4, 2002; district court delayed ruling for over eight years and denied the motion in December 2010.
- Westmoreland argued due process and Sixth Amendment violations based on outrageous government conduct, and on newly discovered evidence; he appealed the district court’s denial.
- The Seventh Circuit affirmed, holding no due process violation from the Milkovich affair, no newly discovered-evidence warranting a new trial, and no Sixth Amendment violation from the delay or lack of counsel, under the applicable standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether outrageous government conduct requires reversal. | Westmoreland asserts Milkovich’s affair tainted the investigation. | Westmoreland seeks due process relief per Russell dictum. | No due process violation; affair taint insufficient. |
| Whether Milkovich’s affair constitutes newly discovered evidence warranting a new trial. | Affidavits from Wade, Schmidt, and Kuehl show earlier misconduct. | Not new evidence; due diligence lacking; unlikely acquittal. | Not newly discovered evidence; no new trial warranted. |
| Whether Milkovich’s later recantation constitutes admissible new evidence. | Recantation undermines Milkovich’s prior credibility. | Recantation would be inadmissible or insufficient to overturn verdict. | Recantation not new evidence; no new trial. |
| Whether the district court’s eight-year delay in ruling on the Rule 33 motion violated the Sixth Amendment speedy-trial right. | Delay prejudices Westmoreland’s post-conviction interests. | Delay not shown to be prejudicial under Barker factors; threshold prejudice lacking. | Delay did not violate the Sixth Amendment; no remedy. |
| Whether Westmoreland’s Sixth Amendment right to counsel was violated by lack of counsel on the Rule 33 motion. | Counsel should have represented him on the motion. | Right to counsel attached but counsel’s handling was reasonable; no prejudice. | No ineffective assistance or denial of counsel; no new trial. |
Key Cases Cited
- United States v. Stallworth, 656 F.3d 721 (7th Cir. 2011) (outrageous conduct defense discussed in circuit precedents)
- United States v. White, 519 F.3d 342 (7th Cir. 2008) (relying on due process and outrageous conduct standards)
- United States v. Garcia, 89 F.3d 362 (7th Cir. 1996) (outrageous conduct discussion in circuit context)
- United States v. Boyd, 55 F.3d 239 (7th Cir. 1995) (outrageous conduct standard reference)
- Russell v. United States, 411 U.S. 423 (1983 (criminal procedure discussion)) (dictum on government conduct potentially barring prosecution)
- United States v. Ye hling, 456 F.3d 1236 (10th Cir. 2006) (speedy-trial impact on post-trial motions (cited for analysis))