United States v. Jeremiah Berg
2013 U.S. App. LEXIS 7111
7th Cir.2013Background
- Berg ran a cross-border scheme trading American guns for Canadian marijuana and later sold cocaine to a dealer who resold to a government agent.
- Berg confessed to cocaine distribution and marijuana gun-for-cannabis dealings on July 16, 2010, and cooperated with investigators before absconding on state probation.
- The indictment charged six counts (marijuana conspiracy, firearms to further a marijuana conspiracy, firearms by a felon, and three cocaine conspiracy counts) all tried together.
- Berg challenged joinder as improper and argued the district court violated Sixth Amendment rights by not calling a key witness, Peynetsa.
- The district court denied post-trial requests for a new trial and an evidentiary hearing; Berg appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether joinder of marijuana and cocaine counts was proper | Berg asserts counts were not the same or similar character warranting joinder. | Government contends counts share drug-trafficking character and were properly joined. | Joinder proper; counts were of same or similar character. |
| Whether severance was required to avoid prejudice | Berg argues prejudice from joinder could warrant separate trials. | Government contends no substantial prejudice given strong, separate counts and jury instructions. | No reversible prejudice; severance not required. |
| Whether Berg’s Sixth Amendment right to examine Peynetsa was violated | Berg claims district court should have compelled questioning of Peynetsa to determine his willingness to testify. | Court did not violate rights; Berg waived the issue via strategic trial decisions. | Waiver forecloses Sixth Amendment claim; no reversible error. |
| Whether Berg's trial counsel was ineffective for declining to call Peynetsa | Berg argues failure to call Peynetsa was deficient and prejudicial. | Counsel's strategic choice not to call Peynetsa was reasonable; evidence against Berg was overwhelming. | No ineffective assistance; strategic decision reasonable, no prejudice. |
| Whether the district court abused its discretion by denying an evidentiary hearing | Berg sought an evidentiary hearing related to Peynetsa’s testimony. | District court acted within discretion given the record and lack of merit in claims. | No abuse of discretion; denial upheld. |
Key Cases Cited
- United States v. Windom, 19 F.3d 1190 (7th Cir. 1994) (joinder/severance framework and prejudice considerations)
- United States v. Lanas, 324 F.3d 894 (7th Cir. 2003) (look to face of indictment for joinder evaluation)
- United States v. Alexander, 135 F.3d 470 (7th Cir. 1998) (same or similar character standard for joinder)
- United States v. Jackson, 208 F.3d 633 (7th Cir. 2000) (application of same/like character concept in drug offenses)
- United States v. Persfull, 660 F.3d 286 (7th Cir. 2011) (severance and prejudice analysis when joinder occurs)
- United States v. Ervin, 540 F.3d 623 (7th Cir. 2008) (burden on showing prejudice from joined counts)
- Best v. United States, 426 F.3d 937 (7th Cir. 2005) (counsel's strategic witness decisions generally not reviewed)
- Strickland v. Washington, 466 U.S. 668 (U.S. Supreme Court 1984) (two-pronged test for ineffective assistance of counsel)
- Olano v. United States, 507 U.S. 725 (U.S. Supreme Court 1993) (distinguishes forfeiture and waiver of rights for review)
- Gonzalez v. United States, 553 U.S. 242 (U.S. Supreme Court 2008) (counsel’s strategic decisions and client control considerations)
- Taylor v. Illinois, 484 U.S. 400 (U.S. Supreme Court 1988) (adversary process does not require client approval for every strategic choice)