UNITED STATES of America, Plaintiff-Appellee, v. Jeremiah S. BERG, Defendant-Appellant.
No. 12-2118.
United States Court of Appeals, Seventh Circuit.
Argued Nov. 28, 2012. Decided April 9, 2013.
714 F.3d 490
Martin J. Pruhs, Attorney, Pruhs & Donovan, S.C., Milwaukee, WI, for Defendant-Appellant.
Before KANNE, WOOD, and SYKES, Circuit Judges.
KANNE, Circuit Judge.
Jeremiah S. Berg ran a cross-border smuggling scheme that traded American arms for Canadian cannabis. Later, he supplied several bags of cocaine to a dealer who unwittingly resold them to a government agent. On July 16, 2010, Berg confessed to both sets of crimes. Berg apparently hoped that his cooperation would win him leniency. Instead, the government took Berg to trial, and a jury convicted him. Berg now appeals, arguing that his two sets of crimes were improperly tried in one case and that he was denied the opportunity to call an exculpatory witness. We disagree and affirm.
Jeremiah S. Berg first came to the attention of law enforcement in March 2008. The federal Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF“) was investigating two illegal gun dealers: Catherine and Juan Elizondo. After the ATF executed a search warrant on the Elizondos’ house, the Elizondos agreed to help gather evidence about their customers. Berg happened to be one of them. Between April and October 2008, Berg met with the Elizondos and an undercover ATF agent several times. Berg expressed interest in buying more guns, although he and the Elizondos never actually consummated another sale. The Elizondos also linked Berg with two guns that were later recovered by Canadian law enforcement. However, for reasons that are not entirely clear, the ATF did not immediately follow up on Berg‘s case.
More than a year later, in April 2010, Berg attracted the attention of the Brown County, Wisconsin, Drug Task Force (“WDTF“). An undercover informant, Russell LaRock, arranged to buy cocaine from Roland Peynetsa. Berg, it turns out, was Peynetsa‘s source whenever LaRock asked Peynetsa for cocaine, Peynetsa would call Berg, and Berg would supply it. On three different days in April and May 2010, law enforcement observed Berg supply about fifty grams of cocaine to Peynetsa, who then resold it to LaRock. LaRock was later caught trying to steal $20 in WDTF buy money, and the WDTF terminated their cooperation with him in late May 2010. On June 22, 2010, the WDTF arrested Peynetsa. The following day, they arrested Berg as well.
After his June 23, 2010 arrest, Berg waived his Miranda rights and started talking. Berg admitted to being a regular cocaine dealer and to having sold cocaine to Peynetsa. Berg also said that, before moving into the cocaine racket, he had sold high-grade Canadian marijuana. Berg was released after agreeing to cooperate with the WDTF. He later provided some help to WDTF investigators, including participation in a controlled drug buy from one of his suppliers. By July 16, 2010, federal agents at the ATF had become aware of Berg‘s arrest and arranged for a non-custodial interview. During the interview, Berg explained how he had traded guns for Canadian marijuana in the past. After the interview, Berg agreed to continue working with WDTF. A few weeks later, Berg broke off contact with law enforcement and absconded from his state-law probation. A warrant was issued for his arrest, and he was finally apprehended on September 2, 2010.
On October 13, 2010, a federal grand jury indicted Berg on six counts: conspiracy to distribute marijuana; use of firearms to further a marijuana conspiracy; possession of a firearm by a felon; and three counts of conspiring to distribute cocaine. All of the charges were tried together in this case. At trial, Berg claimed that his confessions were false and that he was innocent of all of the charges. He had only admitted otherwise, he claimed, because he was afraid of prosecution and wanted the agents to think he would be valuable as a confidential source. The jury disbelieved Berg and convicted him on all six counts. He now appeals, arguing that (1) his gun and marijuana charges should have been severed from his cocaine charges; and, (2) the district court violated his Sixth Amendment rights by failing to call Peynetsa during trial.
II. ANALYSIS
A. Consolidation of Berg‘s Charges in One Trial
Berg first claims that his marijuana trafficking counts and his cocaine
Berg did not raise either issue before or during trial. Instead, he raised both for the first time after trial in a motion for a new trial under
1. Joinder
Berg counters that his two sets of offenses were not of a similar character because (1) they involved different types of drugs; (2) they happened too far apart in time; (3) they involved some non-overlapping evidence; and, (4) one set of offenses involved firearms and the other did not. But Rule 8(a) does not require that joined offenses be “temporally or evidentially related“; all it requires is that they be “of like class.” Alexander, 135 F.3d at 476; see also United States v. Gooch, 665 F.3d 1318, 1335 (D.C.Cir.2012) (“Rule 8(a) permits the joinder of offenses of the same or similar character, even if they are entirely unrelated to each other” as a factual matter) (internal quotation marks omitted). Here, the fact that both crimes involved drug dealing suffices to make them of like class.
As for the factual differences between the marijuana charges and the cocaine charges, those differences inform whether the charges should have been severed because of undue prejudice (a question we will turn to in a moment). But they do not mean the charges were not of the same or similar character. Thus, Berg‘s marijuana and cocaine trafficking offenses were properly joined. And, because it was not error for the cases to be joined, there was not plain error either, and Berg‘s attorney was not ineffective for failing to object to the joinder. See United States v. Persfull, 660 F.3d 286, 296 (7th Cir.2011) (where there was no error, neither an ineffective assistance claim nor a plain error claim will lie).
2. Severance
That brings us to our next question: whether, despite being properly joined, the offenses should have been severed to avoid undue prejudice.
Berg claims that, “if the counts had been severed, [he] may very well have chosen a trial strategy that did not include his taking the stand, and his alleged confession to cocaine distribution would not have been admissible in a guns for marijuana trial, and vice versa.” (Appellant‘s Br. at 21.) But this claim alone does not entitle him to reversal of his conviction. True, joinder can be prejudicial if it improperly coerces a defendant into testifying about a count on which he wishes to remain silent. See Ervin, 540 F.3d at 628. But a defendant‘s “general assertions about the testimony he seeks to offer will not suffice” to win on appeal; “he must proffer specific examples of the exculpatory testimony that he would give but for the joinder of the counts.” Id. at 629 (internal quotation marks omitted); see also Nettles, 476 F.3d at 516–17 (defendant must make “a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other“). Berg has not done so here. Indeed, he claims that it is “impossible to know whether Mr. Berg would have remained silent or made the decision to testify in either, or both trials,” had the trials been severed. (Appellant‘s Br. at 22.) That “general assertion” is not enough to carry his burden. Ervin, 540 F.3d at 629.
Berg also claims that the lack of severance prejudiced him because it may have led the jury to decide the case based on improper evidence. Once again, we are not convinced. To be sure, trying multiple charges at the same time can sometimes be problematic; it runs the risk of producing a verdict based on bad acts and propensity evidence rather than on admissible evidence. See id. at 628. But severance is not always the best solution to that problem. Jury instructions can mitigate potential prejudice from trying multiple charges together, see Nettles, 476 F.3d at 516, and here, the jury was instructed to consider all of the counts separately, (R. 52 at 16). Moreover, the evidence against Berg was compelling on all counts. Berg twice confessed to dealing Canadian marijuana: once on June 23, 2010, and again in greater detail on July 16, 2010, when he admitted that he got his marijuana by swapping it for illegal guns. Canadian authorities later recovered firearms linked to Berg. Berg was recorded discussing illegal firearms deals on multiple occasions, and his dealers, the Elizondos, testified against him. As for the cocaine charges, the evidence against him included his June 23 confession and the testimony of LaRock, the undercover informant. Audio and video surveillance showed multiple instances of Peynetsa placing orders for cocaine, Berg meeting with Peynetsa, and Peynetsa delivering cocaine to LaRock, all in quick succession. Given this compelling evidence and the jury‘s instructions to consider the counts separately, we cannot say that any plain error occurred here.
For the same reason, Berg also cannot show that his counsel was ineffective for failing to move for severance. Under Strickland v. Washington‘s familiar, two-pronged test for ineffective assistance of
B. Failure to Examine Peynetsa
Berg next claims that the district court should have directly questioned Peynetsa to determine whether he would testify for Berg‘s defense. To understand this claim, some further background is in order.
After his arrest, Peynetsa confessed to police and implicated Berg in dealing cocaine. Later, Peynetsa submitted an affidavit claiming that Berg had nothing to do with cocaine trafficking and that Berg only met with Peynetsa to talk about buying marijuana for Berg‘s personal use. Berg placed Peynetsa on his witness list, and the government announced its intention to impeach Peynetsa with his prior confession if Peynetsa testified. During the trial, however, Berg‘s counsel stated that “we have elected not to call Mr. Peynetsa in the defense case in chief.” (Trial. Tr. Vol. II at 425.) He then explained as follows:
[Defense counsel]: I think we had a meeting this morning in chambers where we discussed the fact that Attorney Raj Sing had had contact with Mr. Peynetsa and had been—I do not know if we need to make this—we will just make it part of the record based on our comments here I think is fine. That Mr. Sing did indicate that he had had an opportunity to speak with client and that he was advising Mr. Peynetsa to invoke his fifth amendment rights if called to the stand.2 In my opinion that basically rendered him likely to be unavailable and if that is the case, then we also understand the government cannot use any of his written statements as co-conspirator statements because he would not be subject to cross-examination. So given the fact that Mr. Peynetsa was basically useless to both sides at that point, we have now elected simply not to call him.
THE COURT: I understand he had given post-arrest interviews where he implicated your client and—
[Defense counsel]: Yes.
THE COURT:—those are also not admissible.
[Defense counsel]: Correct.
THE COURT: All right.
[Defense counsel]: The government has not offered any of them.
THE COURT: No, and without him testifying there would be no basis. [Prosecutor], do you have anything to add?
[Prosecutor]: No, Your Honor.
THE COURT: This is one of those decisions that sounds strategic but I take it you have discussed it with your client since you have been having—
[Defense counsel]: Yes.
THE COURT:—it seems multiple discussions with your client. He is an active client—
[Defense counsel]: Yes.
THE COURT:—it appears from the court‘s vantage point.
[Defense counsel]: Sure.
THE COURT: All right. Good.
(Id. at 425-27) (footnote added).
In proceedings on Berg‘s post-trial motion, Berg argued that his attorney was ineffective for failing to call Peynetsa into court to state whether he actually wanted to invoke his Fifth Amendment rights.3 Berg also requested a post-trial evidentiary hearing to allow Peynetsa to testify about his intentions. The district court held that Berg‘s attorney made a reasonable strategic decision not to call Peynetsa and denied Berg‘s post-trial motion.
Berg does not renew his ineffective assistance claim here. Because Peynetsa‘s testimony is not in the record, Berg argues that there is not enough evidence to tell whether his attorney was ineffective. Instead, Berg argues that the district judge violated Berg‘s Sixth Amendment right to compulsory process by failing—both during trial and during post-conviction proceedings—to determine independently whether Peynetsa wanted to testify. Questioning Peynetsa during trial, Berg argues, would have allowed the district judge to determine whether Peynetsa actually would have invoked his Fifth Amendment rights. And questioning Peynetsa after trial, Berg continues, would have allowed Berg to support his ineffective assistance claim.
We disagree. Berg waived his right to call Peynetsa at trial, and, as we will explain, that waiver extinguished any Sixth Amendment claim Berg might have had. Berg cannot overcome that waiver, and, in any event, his underlying ineffective assistance claim is meritless. Accordingly, the trial court‘s failures to question Peynetsa—either during or after trial—do not entitle Berg to reversal of his conviction.
1. Failure to question Peynetsa during trial
We will start with Berg‘s argument that the district judge should have independently questioned Peynetsa during trial. As we have already discussed, see 1 supra at n. 1, the Supreme Court has distinguished between “forfeiture” and “waiver“; “forfeiture is the failure to make the timely assertion of a right,” while “waiver is the intentional relinquishment or abandonment of a known right.” See Olano, 507 U.S. at 733; accord Tichenor, 683 F.3d at 363. A forfeited error may still be reviewed on appeal, albeit under the more deferential “plain error” standard. Olano, 507 U.S. at 732. “When an issue is waived,” however, “we cannot review it at all because a valid waiver leaves no error for us to correct on appeal.” Tichenor, 683 F.3d at 363 (internal quotation marks omitted). Here, Berg, acting through counsel, clearly abandoned his right to call Peynetsa at trial. Accordingly, Berg waived any Sixth Amendment claim on this basis, and we cannot consider it on appeal.
Berg also suggests, without citation, that the district judge had an independent duty to determine whether Berg agreed with his lawyer‘s decision not to call Peynetsa. (See Appellant‘s Br. at 29.) At the outset, Berg forfeited this argument by failing to make it in the district court. See United States v. Taylor, 471 F.3d 832, 841 (7th Cir.2006). But in any event, the argument has no merit. “The adversary process could not function effectively if every tacti-
That brings us to the core issue: whether Berg‘s attorney was ineffective for declining to call Peynetsa at trial. While Berg raised this argument in post-trial proceedings, he now argues that there is not enough information in the record to determine his attorney‘s effectiveness. (Appellant‘s Br. at 30.) If Berg is correct, that suggests we should leave the question for collateral review under
We usually leave ineffective assistance of counsel claims for collateral review. See United States v. Best, 426 F.3d 937, 944 (7th Cir.2005). That said, we will address such claims on direct review if they do not involve extrinsic evidence and “can be fully evaluated only on the record below.” Id. And, because Berg cannot possibly show that his lawyer‘s performance was deficient on this record, we think this is one such case.
As discussed, proving ineffective assistance of counsel requires Berg to show that (1) his counsel‘s performance was deficient; and, (2) that deficiency resulted in prejudice. See Strickland, 466 U.S. at 687. To demonstrate that his lawyer‘s performance was deficient, Berg must show that his lawyer‘s work “fell below an objective standard of reasonableness.” Id. at 688. “It is all too tempting for a defendant to second-guess counsel‘s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel‘s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.” Id. at 689. As a result, review of counsel‘s actions is “highly deferential,” and we must “indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.” Id.
Berg‘s attorney reasonably declined to call Peynetsa here. “The Constitution does not oblige counsel to present each and every witness that is suggested to him.” Best, 426 F.3d at 945. Instead, it simply obliges counsel to investigate the various lines of defense available in a given case. See Wiggins v. Smith, 539 U.S. 510, 521-23 (2003). “If counsel has investigated witnesses and consciously decided not to call them, the decision is probably strategic.” Best, 426 F.3d at 945. As a result, counsel‘s decision “to call or not to call a witness” is “generally not subject to review.” Id.
There can be no doubt that Berg‘s counsel made a strategic decision not to call Peynetsa—the trial judge specifically observed that this was “one of those decisions that sounds strategic,” and Berg‘s trial counsel agreed. (Trial Tr. Vol. II at 427.) Moreover, that strategic decision was reasonable. As both defense counsel and the trial judge noted, calling Peynetsa would have allowed the government to introduce post-arrest interviews in which Peynetsa implicated Berg. (Id. at 426-27.) A reasonable attorney could easily conclude that the harm caused by these inter-
Nor can he show prejudice. As we have already discussed at length, the evidence here weighed heavily in favor of the government. Moreover, there is little reason to think that Peynetsa‘s testimony would have tipped the scales back in Berg‘s favor. Given Peynetsa‘s apparent intent to invoke his Fifth Amendment rights, he might not have even testified if called. And even if Peynetsa did testify, he was unlikely to be a strong witness; the government could have impeached him with his prior statements implicating Berg. In light of these observations, we do not think that Berg can satisfy either prong of Strickland.
2. Failure to question Peynetsa during post-trial proceedings
That brings us to our final issue. Berg, in his reply brief in support of his motion for a new trial, asked for an “evidentiary hearing relative to the issues of whether Mr. Peynetsa would have testified.”4 (R. 92 at 7.) Berg never received one, and he argues that this, too, violated his Sixth Amendment right to call witnesses in his defense.
The Sixth Amendment gives a defendant the right to present witnesses in his defense. But that right “is not unlimited” and must “accommodate other legitimate interests in the criminal trial process.” United States v. Scheffer, 523 U.S. 303, 308 (1998). We think that one such legitimate interest is the need for litigants to present their evidence at the proper time and in the proper way. See Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (“the accused, as is required of the State, must comply with established rules of procedure and evidence” in exercising his or her Sixth Amendment rights); Horton v. Litscher, 427 F.3d 498, 505 (7th Cir.2005) (quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987)) (reasonable restrictions on the presentation of evidence “do not abridge an accused‘s right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve‘“). Berg could have tried to call Peynetsa at trial. And, had the district court barred him from doing so, Berg could have objected and preserved the issue for appeal. But he did not. Instead, he affirmatively (and, as discussed, reasonably) waived his right to call Peynetsa. In other words, Berg was not denied the opportunity to call Peynetsa. Berg had the opportunity to call Peynetsa; he just did not try to use it until well after the time to do so had passed. We do not think that the Sixth Amendment gives defendants a right to affirmatively abandon an issue at trial and then revive the issue after things have not gone their way.
That said,
We do not think the district court abused its discretion here. As discussed, Berg‘s ineffective assistance claim cannot succeed because his attorney made a strategic choice not to call Peynetsa. As a result, an evidentiary hearing was unnecessary to resolve the claim, and the district court did not abuse its discretion by declining to hold one.
III. CONCLUSION
We AFFIRM Berg‘s conviction.