UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GILBERTO VIZCARRA-MILLAN, et al., Defendants-Appellants.
Nos. 19-3476, 19-3481, 19-3484, 19-3537, 20-1113 & 20-1266
United States Court of Appeals For the Seventh Circuit
Argued May 12, 2021 — Decided September 30, 2021
Before FLAUM, HAMILTON, and BRENNAN, Circuit Judges.
Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:17-cr-00222-JMS-TAB — Jane Magnus-Stinson, Judge.
Grundy argues that the district court violated his Sixth Amendment right to counsel by improperly obstructing him from representing himself. Gilberto Vizcarra-Millan argues that the district court should have disqualified his chosen counsel due to a conflict of interest. Derek Atwater, James Beasley, and Undrae Moseby all challenge the denials of their untimely motions to suppress evidence. Atwater, Beasley, and Ezell Neville all contend that the evidence was insufficient to support some of their convictions.
We affirm the convictions of Grundy, Vizcarra-Millan, Moseby, Atwater, and Neville. We also affirm the conviction of Beasley on one count but reverse his convictions on two others. The evidence at trial necessarily left a reasonable doubt as to whether he committed those crimes. Beasley‘s case is remanded to the district court for resentencing on the one remaining count.
I. Factual and Procedural Background
We provide the basic outline of Grundy‘s network and the procedural history of this case here, with more specific details as needed for each defendant‘s appeal. Because the co-conspirators’ appeals do not hinge on the substance of the conspiracy, we omit many of the details of the inner workings of Grundy‘s crew as presented during the trial.
A. Grundy and his Crew
Grundy has been of interest to law enforcement for years. He has been arrested or indicted for, among other things, murder and conspiracy to commit murder, though he was never convicted of so serious a charge. As recently as 2015 or
After his plea in the state case, Grundy pooled seed money to restart his drug-trafficking network. Gilberto Vizcarra-Millan, who lived in Arizona, provided the drugs to Grundy. A network of couriers, including defendant Undrae Moseby, brought the drugs to Indiana.
Once the drugs arrived in Indianapolis, Grundy distributed them himself or via a network of wholesalers, including David Carroll. These wholesalers then sold to retail dealers, including Derek Atwater and James Beasley. Ezell Neville was another associate of Grundy‘s. The parties dispute the exact nature of his relationship with Grundy, but he also sold Grundy‘s methamphetamine. All told, Grundy and his crew brought at least 280 pounds of highly pure methamphetamine, as well as other drugs, to the streets of Indianapolis.
In May 2017, federal law enforcement obtained wiretaps for the cell phones of crew members. FBI agents also coordinated controlled drug buys from Grundy‘s dealers. Things started to fall apart for the Grundy gang in August 2017. Law enforcement seized over $84,000 in cash that was headed to Vizcarra-Millan to purchase more drugs. Next, in September 2017, agents intercepted a phone call between Carroll and Beasley discussing an upcoming methamphetamine deal. Soon after Beasley purchased the methamphetamine, local police stopped the car in which he was a passenger for a routine traffic violation. The officers smelled raw marijuana and recovered drug paraphernalia while searching the car. A search of Beasley‘s person uncovered methamphetamine. The driver of the car, Susan Koch, told the officers that Beasley
On November 17, federal agents executed several search warrants against members of the conspiracy. As relevant here, they uncovered methamphetamine and drug-trafficking paraphernalia at Atwater‘s house. They also raided what they believed to be the “clubhouse” of Grundy‘s gang. Several members of the conspiracy were present, and the police collected several cell phones, including two used by Moseby that contained incriminating evidence of his connection to the Grundy crew.
B. Pretrial and Mistrial
In two separate cases, over two dozen members of Grundy‘s gang were charged with federal offenses, including conspiracy to distribute drugs and money laundering. Most defendants ultimately pled guilty. David Carroll, one of Grundy‘s key wholesalers, agreed to testify for the prosecution. Carroll‘s attorney, John Tennyson, however, had also been retained by Vizcarra-Millan, who was charged in the second, formally distinct but related case. The government pointed out the potential conflict of interest—if Carroll were to testify at trial (which he had agreed to do), he might incriminate Vizcarra-Millan. If he did, Tennyson‘s duties to his respective clients would conflict. See Indiana Rule of Prof‘l Conduct 1.7.
Two district judges held hearings to discuss the conflict with Vizcarra-Millan and whether he wanted to waive it. At the first hearing with Judge Barker, the potential conflict appeared both minor and unlikely to become actual, and Vizcarra-Millan said he would waive any conflict of interest.
But then, five weeks before trial, attorney Tennyson filed a motion to withdraw the waiver because his client had rejected the government‘s plea offer and said he intended to go to trial. Contrary to what he had told both judges months earlier, Tennyson now claimed his conflict of interest prohibited him from adequately representing Vizcarra-Millan at all. Judge Magnus-Stinson denied Tennyson‘s motion without holding a hearing. Vizcarra-Millan later pled guilty without a deal from the government.
In the meantime, the district court had set a deadline in February 2019 for filing motions to suppress evidence. Months later, just days before trial, defendants Beasley and Moseby submitted motions to suppress, styled as evidentiary motions in limine. The district court denied both motions.
Trial got under way on July 8, 2019, in Indianapolis. The court took the unusual step of empaneling an anonymous jury after the gоvernment came forward with evidence of attempted witness tampering and intimidation. The court provided juror information to defense counsel but forbade the defendants themselves from learning the jurors’ names or detailed personal information from which they could be identified. The first trial did not last long. By day three, the district court learned that, despite the precautions, some defendants had gotten their hands on this confidential information. Moseby had written down the names of several jurors. Grundy had obtained partially redacted juror questionnaires.
Between the mistrial and the second trial, Grundy moved to represent himself. He wanted to pursue his own strategy, but he also wanted standby counsel to help him with the nuts and bolts of lawyering. The district court held a hearing that ended when Grundy ultimately declined to waive his Sixth Amendment right to counsel.
C. Second Trial and Posttrial Procedure
The second trial lasted three weeks. As relevant here, several co-conspirators testified against Grundy, implicating him as the mastermind of this drug trafficking ring. The evidence showed that Atwater, Beasley, and Neville all bought drugs from Grundy or one of his associates. The details of each defendant‘s relationship to Grundy‘s network, however, varied considerably, as did the circumstances of each documented purchase. During the trial, Atwater also submitted another late motion to suppress. The district court denied it, as well.
The jury found all defendants guilty on all counts. All defendants were found guilty of Count 1, conspiracy to distribute drugs. Neville was also convicted of conspiring to launder a monetary instrument in connection with the seizure of more than $84,000 from Grundy‘s shipment of cash (Count 24), and Beasley was convicted on two counts of possessing methamphetamine with intent to distribute (Counts 16 and 17).
The district court imposed a life sentence on Grundy. Atwater was sentenced to 216 months; Beasley was sentenced to 216 months, Moseby to 240 months, and Neville to 360 months.
D. Issues on Appeal
On appеal, Grundy argues that the district court violated his Sixth Amendment right to counsel by unduly discouraging him from exercising his right to represent himself. Vizcarra-Millan contends that his right to counsel was violated by the district court‘s failure either to disqualify Tennyson or to grant his motion to withdraw his conflict waiver shortly before trial.
Atwater, Beasley, and Moseby appeal the district court‘s denials of their respective motions to suppress. Atwater argues that the search of his home was not supported by probable cause. Beasley moved to suppress the evidence seized during the traffic stop on the ground that the officers lacked reasonable suspicion that the driver had committed a traffic violation. Moseby objects to the government‘s seizure of his cell phones during the raid on Grundy‘s clubhouse and its search of those phones.
Finally, Atwater, Neville, and Beasley argue that the evidence did not support some of their convictions. All three say that the evidence at trial was insufficient to rule out the possibility that they were merely buyers from Grundy‘s gang, as opposed to co-conspirators. Neville also challenges his money-laundering conviction, and Beasley challenges his
In Part II, we address and reject first Grundy‘s and then Vizcarra-Millan‘s arguments that their Sixth Amendment rights to counsel were violated. In Part III, we affirm the denials of the motions to suppress filed by Atwater, Beasley, and Moseby. In Part IV, we address the sufficiency of the evidence for Atwater, Neville, and Beasley, affirming all convictions except two of Beasley‘s.
II. Right to Counsel: Grundy and Vizcarra-Millan
The
Grundy, by invoking his right to represent himself, and Vizcarra-Millan, by invoking his right to choose his own counsel despite a conflict of interest, each put the district court in a constitutional double-bind. No matter how a district court decides each issue, the defendant will have an issue to appeal. We have, for example, compared a district court‘s navigation of a request to proceed pro se to passing between Scylla and Charybdis, see United States v. Sandles, 23 F.3d 1121, 1127 (7th Cir. 1994), and similarly, “trial courts confronted with multiple representations face the prospect of being ‘whip-sawed’ by assertions of error no matter which way they rule.” Wheat v. United States, 486 U.S. 153, 161 (1988); see also United States v. Lowry, 971 F.2d 55, 60 (7th Cir. 1992) (quoting same and encouraging district courts to consider the ramifications of joint-
A. Grundy‘s Motion to Represent Himself
Richard Grundy presents a claim under Faretta v. California, 422 U.S. 806, 819 (1975). He says that the district court‘s effort to ensure that his intended waiver of his
As an accused defendant, Grundy had a
To establish a record, we strongly encourage district courts to conduct a formal hearing into whether the defendant is going into self-representation with “eyes open.” Faced with a defendant invoking his right to proceed pro se, a district court should:
engage in a thorough and formal inquiry with a defendant that probes his age, education level, and understanding of the criminal charges and possible sentences. The court should also inform the defendant of the difficulties of proceeding pro se.
United States v. Johnson, 980 F.3d 570, 577 (7th Cir. 2020) (quotation marks and citations omitted). We are reluctant to police too closely the details of district courts’ Faretta hearings. The district judge “is on the razor‘s edge in assisting a defendant to make an informed choice between representation by counsel with whom the defendant is irrationally dissatisfied and self-representation.” United States v. Oreye, 263 F.3d 669, 672 (7th Cir. 2001).1
This case illustrates this razor‘s edge. To ensure that a waiver is “knowing and intelligent,” the court should point out the disadvantages of self-representation. If the court does not say much about these challenges, defendants who waive their right to counsel may argue on appeal that the Faretta colloquy was too cursory. E.g., Johnson, 980 F.3d at 577. But if the district court goes into detail about these challenges, a defendant who chooses in the end not to waive counsel may argue on appeal that his Faretta rights were burdened by a colloquy that was too persuasive. See Sandles, 23 F.3d at 1127. That‘s part of the reason there is no “talismanic procedure” for Faretta hearings, Torres v. United States, 140 F.3d 392, 401 (2d Cir. 1998), and why we generally review district court‘s Faretta hearings deferentially. E.g., United States v. Hill, 252 F.3d 919, 928 (7th Cir. 2001) (“Often asking the Benchbook questions may ensure that the defendant has his eyes open, but we do not read any of this court‘s decisions to hold that the litany is prescribed in every case or that advice about any particular disadvantage of self-representation is essential; such a reading would put us at odds with the Supreme Court.“). The key is that the accused must make the final choice, but only once he understands his alternatives.
Nonetheless, as a matter of prudence if not constitutional law, district judges should discourage all or nearly all defendants from exercising their rights under Faretta. E.g., Johnson, 980 F.3d at 578 (commending judge for having “strongly advised Johnson against proceeding pro se“); United States v. Mancillas, 880 F.3d 297, 302 (7th Cir. 2018) (“courts ‘should ... advise the defendant that proceeding pro se is unwise.‘“), quoting United States v. Todd, 424 F.3d 525, 531 (7th Cir. 2005); cf. Kubsch v. Neal, 800 F.3d 783, 812–16 (7th Cir. 2015) (affirming denial of habeas relief where petitioner argued that trial judge did not try hard enough to discourage him from representing himself in capital sentencing phase; defendant made competent strategic decision not to present evidence to mitigate three brutal murders, but to emphasize residual doubt about guilt), vacated on other grounds, 838 F.3d 845 (7th Cir. 2016) (en banc). The waiver of counsel must also be “unequivocal.” That means that district courts must press difficult, hesitant, or ambivalent defendants to answer yes or no whether they wish to waive the right to counsel. See United States v. Campbell, 659 F.3d 607, 612 (7th Cir. 2011) (discussing importance of unequivocal demand and rationale for requirement), vacated on other grounds, 568 U.S. 802 (2012).
The bulk of the hearing was devoted to Grundy‘s request that his current attorney, Kenneth Riggins, be appointed standby counsel and to the data security problems posed by having a detained defendant with a track record of disregarding court orders seek unlimited access to confidential discovery within the jail. After discussing these issues for almost an hour, the court noted that if Grundy were to invoke unambiguously and unconditionally his right to proceed pro se, it would appoint attorney Riggins to have a limited role as standby counsel. The court also said it would likely require that Riggins retain physical possession of the most sensitive documents, though Grundy could review those documents with Riggins during jail visits.
The court finally asked Grundy for a yes-or-no answer. Grundy replied, “I guess I can‘t represent myself.” He explained that it was a hard choice because he did not know how the district court would rule on future motions, including those pertaining to data security, whether the court might allow him to re-invoke his right to counsel, and how it would rule on a variety of late motions in limine he had contemplated filing.
1. Too Persuasive?
We have suggested on occasion that a too-persuasive Faretta colloquy could burden the right. Kubsch, 800 F.3d at 812 (“If a judge believes, as the trial judge did here, that the defendant is making a knowing and intelligent waiver, then she would commit constitutional error by discouraging that decision too strongly.“); Oreye, 263 F.3d at 672 (Faretta “right is not honored if judges must depict self-representation in such unremittingly scary terms that any reasonable person would refuse.“), quoting Hill, 252 F.3d at 928–29; United States v. Sandles, 23 F.3d 1121, 1127 (7th Cir. 1994) (a too-persuasive colloquy risks “trammeling the defendant‘s constitutional right to present his own defense“). But Grundy does not cite, and we have not found, a case in which we have actually reversed a district court for dwelling on the “perils of self-representation ... in truly loving detail.” Oreye, 263 F.3d at 672. Instead, we “have tried to keep the permissible middle ground between these opposing errors fairly broad, allowing trial judges reasonable leeway to adapt the inquiry to the circumstances of the case without requiring a script or checklist.” Kubsch, 800 F.3d at 813.
Grundy‘s hearing was dominated by prolonged discussions regarding his request to have his current attorney appointed as standby counsel. The district court responded that defendants who proceed pro se must represent themselves, and they cannot be co-counsel with their standby lawyers.
The district court underscored that if Grundy were to proceed pro se, he would be truly on his own. Grundy later explained that he viewed standby counsel as “training wheels“—someone who could help him organize his thoughts, sort through the evidence, and consult throughout the trial. To that end, he also wanted to have access to Riggins’ computer at the counsel table during trial so that he and Riggins could quickly scroll through the electronic evidence. Grundy‘s concerns were greater than the computer, though, as he wanted “to be able to, to see what is about to happen before it happens.”
The court reiterated that it was concerned that Grundy envisioned an expansive role for Riggins. The court announced that it would appoint Riggins as standby counsel but would not tolerate hybrid representation (that is, the two working together as co-counsel). The court again explained that trial advocacy “is a highly technical involved area of education, training, and understanding. I am not saying that to intimidate you. I am required by law to tell you that it is a hard thing to do, but it is your absolute right to do it, and if that is what you want to do, you have the right to do it.” The court then read from the Federal Judicial Center‘s Benchbook, which contains a suggested script for Faretta hearings, strongly urging
The district court‘s repeated questioning on Grundy‘s understanding of standby counsel did not run afoul of Faretta. We have explained that hybrid representation “is generally to be avoided,” Carlson v. CSX Transportation, Inc., 758 F.3d 819, 826 (7th Cir. 2014), citing United States v. Chavin, 316 F.3d 666, 671–72 (7th Cir. 2002), if not outright “forbidden.” Oreye, 263 F.3d at 672. As noted, before the district court could accept Grundy‘s waiver, it had to establish a record “that he knows what he is doing and his choice is made with eyes open.” Faretta, 422 U.S. at 835 (quotation marks and citation omitted). As the foregoing summary illustrates, when Grundy at first said he wanted to waive his right to counsel, it was not clear whether he understood the consequences or understood that standby counsel is not co-counsel and that once he waived his
We see no error in the district court‘s explanation of the limits of standby counsel, especially in the face of Grundy‘s repeated ambiguous answers as to what he wanted from his attorney. Faretta hearings “may require a give and take between the accused and someone trying to educate him about counsel‘s benefits.” Jean-Paul v. Douma, 809 F.3d 354, 359 (7th Cir. 2015) (quotation marks and citation omitted). Here, Grundy repeatedly said that he wanted to have it both ways in trial and to be allowed to change his mind. That‘s a recipe
In a variation on this challenge, Grundy argues that the district court should have stopped the hearing about halfway through because he invoked his Faretta right clearly at that point. He contends that any further discussion burdened his right. But his argument both misreads the record and misunderstands Faretta and the purpose of the hearing. Grundy points to the following exchange after a fifteen-minute recess to discuss his options with his attorney:
The Court: So you have had about 15, 20 minutes to talk to Mr. Riggins. I, before we—do you still want to proceed with the hearing on your motion to represent yourself?
Grundy: Yes. I wanted to ask. I kind of got to the bottom of what I needed to know if I am going to represent myself or not.
Grundy asserts that this was an unequivocal invocation of his right to self-representation and that the hearing should have stopped then.
We disagree for two reasons. First, based on the transcript, this simply was not a clear invocation of his Faretta right. Rather, Grundy said only that he wanted to continue the conversation. See United States v. Miles, 572 F.3d 832, 836–37 (10th Cir. 2009) (affirming district court‘s interpretation of ambiguous statements as not expressing desire to proceed pro se). Second, and more fundamental, even a clear attempt to invoke Faretta is only the beginning of the matter, not the end.
Faretta is not a Miranda-like right, where custodial interrogation must cease once a suspect says he wants a lawyer. See, e.g., United States v. Wysinger, 683 F.3d 784, 796 (7th Cir. 2012) (applying Miranda). When a defendant clearly and unambiguously invokes his Faretta right to proceed pro se, the district court is not required to take the statement at face value and as final. To the contrary, the district court must refuse to accept a supposed waiver until the record shows that the waiver is knowing and intelligent. Because Grundy remained ambivalent and tried to invoke his Faretta right conditionally, the court did not burden his right by asking further questions.
2. Access to Evidence
Grundy‘s second argument hinges on issues related to trial and witness security. He contends that the district court erred by asking the government for any input during the hearing and that the court‘s suggested conditions for data security burdened his constitutional rights. He points to the district court‘s suggestions that it would forbid him from taking possession of sensitive discovery materials (such as still-confidential witness statements), though he could review any and all documents with attorney Riggins, and that it might not allow Grundy to use Riggins’ computer during the trial
The district court correctly focused on the serious security concerns posed by Grundy‘s prosecution. The right to represent oneself “is not unlimited,” and “[s]ecurity considerations ... may require special adjustments.” Milton v. Morris, 767 F.2d 1443, 1446 (9th Cir. 1985), citing United States v. Chatman, 584 F.2d 1358, 1360 (4th Cir. 1978) (no constitutional violation where defendant‘s access to legal resources was restricted after being moved into “segregated confinement“); see also United States v. Galloway, 749 F.3d 238, 242 (4th Cir. 2014) (no constitutional violation where district court‘s discovery orders inconvenienced pro se defendant because they were “justified by the circumstances,” that is, “enormous security issues“); United States v. Sarno, 73 F.3d 1470, 1491–92 (9th Cir. 1995) (“The right of access is not unlimited, but must be balanced against the legitimate security needs or resource constraints of the prison;” no constitutional violation where government allowed defendant to review discovery to determine which documents should be copied for his pretrial
Recall the context of this hearing. The district court, already alert to the grave security concerns in the case, had taken the unusual step of empaneling an anonymous jury based on concerns about juror intimidation. The first trial ended in a mistrial, in part because Grundy himself obtained confidential juror questionnaires. The transcript of the Faretta hearing also indicates that he was placed in solitary confinement as a result of the conduct that led to the mistrial.3
Given this backdrop, Grundy posed obvious and legitimate security concerns, even with counsel. If he were to represent himself, the district court had to consider further potential problems. Judge Magnus-Stinson‘s discussion of potential solutions was important and responsible. A core part of the district judge‘s job is to protect jurors, witnesses, and the integrity of judicial proceedings more broadly. Consideration of these proposals was entirely appropriate under the circumstances. Discussion of them did not violate Grundy‘s constitutional rights.
At least some arrangements like the proposed restrictions would have been warranted by the unusual circumstances of Grundy‘s prosecution. The government requested that Riggins, as standby counsel, retain physical possession of certain sensitive documents, though Grundy and Riggins would be allowed to review them together. As it mulled its options, the court made clear that under any scenario, it would not forbid Grundy from viewing any document, but it had legitimate security concerns about Grundy taking confidential witness statements into the jail. Grundy‘s solitary confinement may have made this process cumbersome, but we are not convinced that approach would have been per se unconstitutional or even an abuse of discretion. See Chatman, 584 F.2d at 1360 (restricting a particularly dangerous defendant‘s access to legal materials did not violate Bounds); Galloway, 749 F.3d at 242 (affirming limits on pretrial detainee‘s access to discovery in light of security concerns).
Grundy also objects to the court‘s comments on his request to use Riggins’ computer during trial if he waived counsel. We see no error. The court merely noted that it would “figure something out” if Grundy chose to proceed without counsel. In any event, Grundy‘s request was ambiguous. Putting aside the ethical and security issues posed by a court ordering a
To sum up on this issue, the court‘s Faretta hearing was procedurally sound, and its discussion of possible restrictions on access to confidential documents due to security concerns did not violate the
B. Vizcarra-Millan‘s Potentially Conflicted Counsel
Vizcarra-Millan‘s appeal attempts to take advantage of the inherent tension between two aspects of the accused‘s
If the accused says he wants to be represented by a lawyer who faces an actual or potential conflict of interest, the district court can err in either direction: either deny the accused his choice of counsel or deny him counsel free of conflicts of interest. This tension also can create opportunities for
To begin, we review the facts of the two hearings where Vizcarra-Millan waived his right to conflict-free counsel and explain why we find no error at that stage. We then consider Vizcarra-Millan‘s change of position a few weeks before trial, when he tried to revoke his waiver of his right to conflict-free counsel. The district court rejected this change of course and found that he was acting in bad faith, which Vizcarra-Millan essentially admitted at sentencing. We also find no reversible error in the court‘s handling of his change of mind.
1. Vizcarra-Millan‘s Waivers of the Right to Conflict-Free Counsel
a. The Problem Arises Before Judge Barker
Defendant Gilberto Vizcarra-Millan hired a conflicted attorney, John Tennyson, to represent him. Tennyson had two other clients in the Grundy gang, and both had agreed to testify for the government. The government informed Judge Barker that attorney Tennyson represented several defendants in two Grundy-related cases—Carroll and Carter in one case, and Vizcarra-Millan in the other. When Judge Barker learned of this conflict, she promptly held a hearing to determine whether Vizcarra-Millan and the other defendants knowingly and intelligently waived the right to conflict-free counsel and whether she should nonetheless disqualify Tennyson based on the conflict.
Skeptical that Tennyson or the government could guarantee exactly how two cooperating witnesses would testify at trial, Judge Barker observed that, given these conflicts, “it seems so obvious to me ... that you‘re on thin ice.” Nonetheless, she conducted a full colloquy to inform each of Tennyson‘s clients of his right to conflict-free counsel and the dangers of proceeding with Tennyson. All three clients orally waived their right to conflict-free counsel. Carroll and Carter both told law enforcement that they did not know Vizcarra-Millan. The government agreed that neither witness had suggested any knowledge that would implicate Vizcarra-Millan directly. Tennyson also noted that he expected other trial evidence to establish clearly “a very strong Arizona connection,” so that he would not contest the general geographic source of the drugs at trial.
Judge Barker then discussed the potential conflict with Vizcarra-Millan. She noted that it was unlikely to be “serious” and that it was “not a substantive issue where there‘s a direct obvious conflict.” She then told Vizcarra-Millan of his right to
Judge Barker handled the issue exactly right. She examined the nature of the potential conflict closely and concluded correctly that the potential conflict was not very serious or important as a practical matter. She also noted that if the potential conflict became actual, measures short of disqualifying counsel could protect Vizcarra-Millan‘s rights. Judge Barker did not abuse her discretion by deferring to Vizcarra-Millan‘s informed choice to stick with attorney Tennyson. As noted, it is risky to disqualify counsel over the objection of the accused, especially where the conflict remains only potential, because denial of the right to counsel of choice can also violate the
b. The Second Hearing, Before Judge Magnus-Stinson
Judge Magnus-Stinson took over the conflict issue when the two cases were consolidated. She ordered Tennyson to submit written waivers. When he did not, Judge Magnus-Stinson held another hearing on February 19, 2019 on whether Vizcarra-Millan knowingly and intelligently waived his right to conflict-free counsel. At the hearing, he explained that he “got to kind of thinking” after the first hearing. Judge
Vizcarra-Millan‘s argument on appeal hinges on what happened next. He told the judge that he was “kind of stuck in a hard position” because he had already paid Tennyson in full and did not want to have to restart with a new attorney with trial just a few months away. Vizcarra-Millan then blamed the government for the “unfair” and “tough” position he was in. The court responded that it was not the government‘s fault that he had retained Tennyson, but nonetheless observed that it did not sound as if he wanted to waive the conflict. Vizcarra-Millan expressed ambivalence about whether he wanted to waive his conflict with Tennyson, but he then announced for the first time that he did not want to take the case to trial.
The government provided background as to why plea negotiations had broken down. Tennyson and Vizcarra-Millan had met with the government for a proffer session. During that meeting, the prosecutors learned that he had never signed the written waiver as ordered by Judge Barker. At the hearing before Judge Magnus-Stinson, the government expressed no preference for or against Tennyson and waiver but noted that it could not be confident it could make a valid plea agreement where it was unclear whether Vizcarra-Millan‘s counsel actually represented him and could properly represent him:
If he wants to sign the form and waive the conflict and proceed with Mr. Tennyson, I am fine working with Mr. Tennyson. If he wants a new lawyer, I am fine with working with a new lawyer, but I am not going to negotiate a plea agreement or someone‘s cooperation under this posture.
The judge turned the choice back to Vizcarra-Millan. After a hearing and a half, he knew the stakes and the facts. He responded: “I don‘t mind waiving my right. I don‘t mind waiving it. I don‘t mind waiving it.” He then complained that the prosecutor did not help him “in any type, shape, form, or way,” even in response to the proffer.
The judge correctly observed that this was not an unequivocal waiver, so she pressed Vizcarra-Millan to answer yes or no whether he wanted to continue with his waiver. The judge then went off the record for almost twenty minutes while Vizcarra-Millan discussed the issue with Tennyson. Following that conversation, he clearly and unequivocally waived his right to conflict-free counsel. He later filed a written waiver of his right to conflict-free counsel.
On appeal, Vizcarra-Millan argues that his waiver was invalid because it was not knowing, intelligent, voluntary, and unequivocal. See United States v. Hill, 252 F.3d 919, 923–24 (7th Cir. 2001). We review that question de novo, though we defer to the credibility determinations of the district court. United States v. Balsiger, 910 F.3d 942, 952 (7th Cir. 2018). Based on this record, there is no question that Vizcarra-Millan‘s waiver met these criteria. We defer to both Judge Barker‘s and Judge Magnus-Stinson‘s determinations that he understood the hearings. His сomments in both hearings show that he
Vizcarra-Millan also argues that the red flags in Tennyson‘s representation should have caused the court to disqualify Tennyson despite his own waiver and his invocation of his right to counsel of choice. Such a step would have invited appeal based on denial of his right to counsel of choice, as in Turner, 594 F.3d at 948 (reversing where district court disqualified defendant‘s counsel of choice based on potential conflict of interest). The fact that Tennyson was “up to [his] elbows” in conflicts, as Judge Barker put it, might have permitted the court to override the defendant‘s choice, but he has not shown that judicial override of his choice was required.
The question on appeal is whether Judge Magnus-Stinson‘s decision to accept the second waiver was within the wide band of discretion that district court judges have when facing such a dilemma. It was. While disqualification of the defendant‘s counsel of choice over his objection might have been permissible here under Wheat, it would have produced a sure-fire issue for an appeal, especially in light of both Tennyson‘s and Vizcarra-Millan‘s statements minimizing the
2. Vizcarra-Millan Changes His Mind
After Vizcarra-Millan submitted his written waiver, the parties went back to the negotiating table but were unable to reach an agreement. On May 2, 2019, Tennyson reported at a status conference that Vizcarra-Millan would proceed to trial.
Three weeks later, and just five weeks before trial, Tennyson filed a motion seeking to withdraw Vizcarra-Millan‘s waiver of the right to conflict-free counsel. The motion was terse. It recited the procedural history and said: “The Defendant no longer wishes to waive his right to conflict-free representation because plea negotiations have broken down.” It added that Vizcarra-Millan “felt pressured into executing the waiver because the Government would not negotiate with him while the issue of whether he would sign a joint representation waiver was pending.”
Vizcarra-Millan has two principal arguments for reversing based on the denial of these motions. First, he argues that the court made a procedural error by ruling on his first motion without holding a hearing. At the very least, he says, the court‘s failure to hold a hearing should call for de novo review of the denial. Second, he says that the court erred substantively because, if a defendant objects to conflicted counsel before trial, it is a per se constitutional violation to make him proceed to trial. In the alternative, he argues that the district court held him to too high a standard for withdrawing his waiver.
As a general rule, an opportunity to be heard face-to-face can improve the accuracy of decision-making and ensures a sense of fairness and legitimacy in the process. See generally Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 161–74 (1951) (Frankfurter, J., concurring). Perhaps another hearing might have sharpened the district court‘s decision-making and aided our review, but we are not convinced that yet another hearing was essential here.
In challenging the denial without a hearing, Vizcarra-Millan relies on our cases involving motions to replace appointed counsel due to a lack of communication between client and counsel preventing an adequate defense. E.g., United States v. Jones, 844 F.3d 636, 642 (7th Cir. 2016). In such cases, we review for an abuse of discretion when a defendant has “had an opportunity to explain his reasons for requesting substitute counsel.” Id. We weigh “the timeliness of the defendant‘s motion, the adequacy of the district court‘s inquiry into the motion, and whether the conflict resulted in a total lack of communication preventing an adequate defense.” Id.
Another hearing was not essential in this case. The importance of a hearing on issues of replacing counsel is based on two assumptions that do not apply here. First, a motion for substitution may be the first time that thе district court becomes aware of the conflict or tension between attorney and client. Zillges, 978 F.2d at 371–72; see also United States v. Ryals, 512 F.3d 416, 418 (7th Cir. 2008) (reversing denial of motion for substitute counsel for sentencing). Second, where there has been a “total breakdown in communication,” an in-person hearing where a defendant can explain himself or herself serves an important purpose. With an asserted breakdown in
Neither of those concerns was present here. First, the district court had already held two hearings on the same issue. Everyone knew what the issues and concerns were. To be sure, a hearing would have allowed the district court to probe why Vizcarra-Millan‘s thinking had changed, but it was not necessary to understand the fundamental issues in Tennyson‘s motion. See United States v. Bjorkman, 270 F.3d 482, 501 (7th Cir. 2001) (“even without [a] hearing the court may well have been sufficiently apprised of the nature of Bjorkman‘s complaints to rule on his request” where defendant‘s letter provided some detail); see also United States v. Miller, 405 F.3d 551, 557 (7th Cir. 2005) (applying abuse-of-discretion review where district court held hearing “after it denied the request“). Thus, we review for abuse of discretion.
Second, the conflict at issue did not implicate Tennyson‘s ability to convey or fulfill Vizcarra-Millan‘s wishes. The conflict was the same one that had been discussed all along. If Vizcarra-Millan were to go to trial, Carroll might testify that the drugs came from Arizona, and Tennyson would have to limit his impeachment of Carroll, also his own client, on that fact. Nothing about that conflict suggested that Tennyson was unable to represent Vizcarra-Millan, let alone that he could not present an adequate defense or describe the issue adequately.
Turning to Vizcarra-Millan‘s substantive challenges to the denials, the general rule is that if there is no waiver, “whenever a trial court improperly requires joint representation over timely objection reversal is automatic.” Holloway v. Arkansas, 435 U.S. 475, 488 (1978). That general rule does not apply here because Vizcarra-Millan did waive his right, knowingly and voluntarily, and the casе had proceeded for months in reliance upon that waiver. District courts are entitled to treat such waivers as binding. United States v. Roth, 860 F.2d 1382, 1387 (7th Cir. 1988) (“A judge is entitled to hold a defendant to statements made in open court and need not give him a hearing so that he may more readily contradict himself.“). At least for the reasons we have described with the constitutional double-bind, we review only for an abuse of discretion a district court‘s refusal to allow the withdrawal of a valid waiver.
Vizcarra-Millan‘s evident bad faith supported denial of his attempt to withdraw his waiver. District courts have discretion to deny bad-faith attempts to manipulate judicial proceedings or to undermine the integrity of the judicial process. See, e.g., United States v. Fazzini, 871 F.2d 635, 643 (7th Cir. 1989) (district court did not err in refusing to inquire into well-documented about-face regarding pro se representation); United States v. Thibodeaux, 758 F.2d 199, 201 (7th Cir. 1985) (defendant “may not manipulate his right to counsel to undermine the orderly procedure of the courts or subvert the administration of justice” by filing dilatory and contradictory motions regarding appointed counsel); cf. United States v. Gonzalez-Lopez, 548 U.S. 140, 151–52 (2006) (listing instances
Judge Magnus-Stinson soundly rejected Vizcarra-Millan‘s attempt to blame the prosecutor for forcing him into this supposed corner. At the February 2019 hearing, the government had said it had no preference for or against Tennyson. The problem in the plea negotiations was that Vizcarra-Millan‘s strategic ambiguity in orally waiving his right without signing a written waiver had made it impossible to know whether Tennyson was truly authorized to negotiate on his behalf. Until that question was resolved definitively, plea negotiations would have been a waste of time.
Vizcarra-Millan argues more generally that a district court is not allowed to deny a motion to withdraw a waiver of a constitutional right out of spite, and that applying any heightened standard is suspect. He says that the district court should not have required him to show changed circumstances justifying his about-face. He also analogizes his case to others in which we have criticized district courts for failing to accommodate other motions to substitute counsel even closer to trial. See, e.g., Sellers, 645 F.3d at 838.
Vizcarra-Millan is correct that timing is often central when a district court denies a motion to change counsel. Where he veers off course, however, is misunderstanding the multiple ways in which timing may be relevant. It is not only a matter of logistics, even if logistics alone would have justified denial of his about-face here. As the
The court did not clearly err in finding that Vizcarra-Millan acted in bad faith. Judge Magnus-Stinson observed Vizcarra-Millan in his second waiver hearing and later proceedings, and she concluded that the new attempt to revisit the conflict issue was just a ploy. Everyone, including Vizcarra-Millan, knew there were easy ways to work around this potential conflict. Based on the well-documented history of Vizcarra-Millan‘s waiver, including his initial attempt to hold out on signing the waiver in an attempt to sow strategic ambiguity, we see no error in Judge Magnus-Stinson‘s findings or her denial of Vizcarra-Millan‘s pretextual motion.
Even if there were doubt about Vizcarra-Millan‘s bad faith before trial and his guilty plea, the doubt would have been erased at sentencing. After the court denied Vizcarra-Millan‘s waiver, he pled guilty without a plea agreement. The court‘s plea colloquy was the “most thorough, most pointed” the attorneys had ever seen. Nonetheless, on the eve of sentencing, Vizcarra-Millan, through Tennyson, moved to withdraw his guilty plea. The judge gave him an opportunity to explain his actions throughout the litigation. He admitted that he had created ambiguity in whether he had waived his right to conflict-
Judge Magnus-Stinson was not impressed:
So I know you are trying to figure out an angle to get yourself off the hook that you are on, but you are on the hook is what I am telling you today. And so the Court will deny any request to withdraw the plea of guilty in this case. Because just for the record, I think you will say whatever you can to try to get out of it....
Vizcarra-Millan says that we should not credit his statements at sentencing because they were tainted by the court‘s earlier denial of his motion to withdraw his waiver. We do not follow his logic. As noted, we review the district court‘s bad-faith finding for clear error. The court found that he was motivated by the desire to use the strategic revocation of his waiver as a bargaining chip in plea negotiations. He admitted at sentencing that he had done exactly that.
The district court therefore did not abuse its discretion in denying Vizcarra-Millan‘s motion as made in bad faith. District courts are entitled to rely on “the representations of the defendant, his lawyer, and the prosecutor.... Solemn declarations in open court carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 73–74 (1977); United States v. Roth, 860 F.2d 1382, 1387–89 (7th Cir. 1988) (holding defendant to earlier waiver of right to conflict-free counsel). Tennyson and Vizcarra-Millan‘s about-faces gave the court a choice.
Contrary to Vizcarra-Millan‘s arguments, the district court did not ignore the
Finally, Vizcarra-Millan argues that he should not be blamed for having hired аn unethical and unscrupulous lawyer. He was taken advantage of, he says, and did not waive his rights or seek to revoke that waiver in bad faith. He would rather we focus on Tennyson‘s misconduct in soliciting joint representation without obtaining written waivers as required by the Indiana Rules of Professional Conduct. He did so while reaching out directly to represented clients, again in violation of the Indiana Rules of Professional Conduct. He was held in contempt of court for failing to abide by court orders. His license to practice law was briefly suspended in Tennessee.
This is a troubling story, but it should not distract us from Vizcarra-Millan‘s conduct. The district court inferred (and he admitted) that from the very early stages of this case, he deliberately tried to sow ambiguity about his waiver. He then continued to use Tennyson‘s potential conflict as a wedge to
III. Fourth Amendment Issues
The
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Defendants Atwater, Beasley, and Moseby all filed late motions to suppress evidence gathered against them, each claiming that a different facet of the
The government asks us to affirm the district court‘s denials of all three motions as untimely. Per the district court‘s scheduling order, motions to suppress were due in February 2019. All three defendants’ motions were filed months later, two in the days preceding trial and the third actually during trial.
“If a party does not meet the deadline for making a [motion to suppress], the motion is untimely. But a court may consider the defense, objection, or request if the party shows good cause.”
At least two, if not all three, motions to suppress could have been denied on procedural grounds as untimely under
Beasley‘s motion, however, presented a question of fact, and the district court did not hold a hearing with in-person testimony. Recall that Susan Koch and Beasley drove in her car to buy some methamphetamine. Local police knew about the deal and stopped their car soon after the deal had been completed. Beasley‘s motion to suppress asserted that the officers did not have reasonable suspicion for the seizure because they did not actually observe a traffic violation. See, e.g., United States v. Simon, 937 F.3d 820, 829 (7th Cir. 2019). He then argued that the 120 grams of highly pure methamphetamine that were found on him and served as the basis of his conviction for Count 16 should have been suppressed.
Beasley‘s motion thus attacked the credibility of the officers who made the stop. One group of officers said Koch swerved out of her lane over a double yellow line. Another group of officers said Koch drove 50 miles per hour in a 35 mile-per-hour zone. Beasley claimed that a hearing would show that the stop violated the
So did the officers actually see one or both violations? Were they honestly mistaken? Was one group of officers lying? Were both? Neither? These questions are fact-intensive and would have required weighing witness credibility. E.g.,
Even on appeal, Beasley does not identify good cause for his late motion, and no justification is apparent from the record. We accordingly affirm the district court‘s denial of his motion to suppress as untimely. See Adame, 827 F.3d at 647. We do not reach the merits or the need for a hearing.
B. Atwater‘s House
Atwater argues that the evidence of drug possession and distribution uncovered during a search of his home should be suppressed because the warrant justifying the search was not supported by probable cause. The warrant application provided facts showing that Atwater was a drug dealer, that a specific residence was likely his house, and that based on those facts, in the experience of the affiant, it was likely that he had drugs or evidence of dealing in the home. Atwater claims that the evidence showing that the house was his was too sketchy and that any inference that he kept drugs or other evidence of dealing there was too speculative.
An affidavit submitted in support of a warrant application “need only contain facts that, given the nature of the evidence sought and the crime alleged, allow for a reasonable inference that there is a fair probability that evidence will be found in a partiсular place.” United States v. Aljabari, 626 F.3d 940, 944 (7th Cir. 2010). Probable cause is a common-sense standard,
We have recognized that “[i]n the case of drug dealers, evidence is likely to be found where the dealers live.” United States v. Lamon, 930 F.2d 1183, 1188 (7th Cir. 1991), quoted in United States v. Zamudio, 909 F.3d 172, 176 (7th Cir. 2018). Thus, where an affidavit offers reasonable grounds to believe the target is a drug dealer and that the property to be searched is his or her residence, we defer to an issuing judge‘s determination that the warrant application established probable cause to search the residence. Zamudio, 909 F.3d at 176–77.
Here, the warrant affidavit said that Atwater bought wholesale quantities of methamphetamine several times in quick succession. He bought, for example, two ounces on July 27, 2017; one ounce on August 6, 2017; and twelve ounces on August 10, 2017. These were quantities of methamphetamine consistent with retail drug distribution. Atwater alleges that the information was stale because these purchases were three months old. It is true that a warrant based on the prior possession of consumable or fungible goods may be stale if too much time has passed before the search is executed. But here, the repeated and large purchases suggested ongoing activity, i.e., retail drug distribution. Given the affiant‘s experience that retail drug dealers keep drugs in their home, that was enough to support a finding of probable cause. Id. at 176–77; see also United States v. Pless, 982 F.2d 1118, 1126 (7th Cir. 1992) (three-month-old information about methamphetamine laboratory was not stale, and even if it had been, officers relied on warrant in good faith).
That brings us to Atwater‘s second issue: the evidence that he lived at the place to be searched. The warrant application
C. Moseby‘s Cell Phones
Moseby‘s cell phones were seized during a search of onе of Grundy‘s properties, the “clubhouse” for his gang. Moseby claims that the search warrant was overbroad in allowing the police to seize every cell phone found inside a residence based on the conclusory assertion that the house was a “clubhouse.” He also claims that once the officers ascertained that the phones were not Grundy‘s, they should have stopped searching them without obtaining another warrant specific to those phones. We conclude that even if we assume that the warrant was overbroad, however, the officers were entitled to rely on it in good faith because it was not facially defective.
The
“The fruits of a search based on an invalid warrant may be admitted at trial if the executing officer relied on the invalid warrant in good faith.” United States v. Orozco, 576 F.3d 745, 750 (7th Cir. 2009), citing United States v. Leon, 468 U.S. 897, 922 (1984). Where an officer goes through the effort to secure a warrant, we presume the officer acted in good faith. Id., quoting United States v. Mykytiuk, 402 F.3d 773, 777 (7th Cir. 2005). The good-faith exception to the suppression rule does not apply, however, when, among other situations, “the affidavit is ‘bare bones’ or ‘so lacking in indicia of probable cause’ that reliance is unreasonable[] [or] when the warrant is facially deficient in that it fails to specify the place to search or the items to seize.” United States v. Glover, 755 F.3d 811, 819 (7th Cir. 2014), quoting Leon, 468 U.S. at 923.
To succeed on his suppression motion, Moseby must show not only that the warrant that authorizеd the search of his phones was overbroad but that it was objectively unreasonable for an officer to think that the warrant was legitimate even though a judge had issued it. The search warrant in question authorized a search of one of Grundy‘s residences. The warrant allowed the executing officers to “search and seize” “Cellular telephones and all electronic data stored within the memory of the cellular telephones.” Neither the warrant nor the warrant application discussed Mr. Moseby or his phones. When the officers executed the warrant on November 17, 2017, Grundy and Moseby were present, along with three
Moseby makes several arguments. He argues that a warrant allowing police officers to enter a suspect‘s home and seize every phone is necessarily overbroad. He says that the warrant was obviously overbroad here because it allowed officers to continue searching the phones even after they ascertained that they were not the wiretap‘s “target phones” and did not belong to Grundy. Moseby also asks us to apply a heightened standard of review because the warrant here concerned cell-phone searches, which he says are especially constitutionally sensitive.
The government counters that the warrant was not overbroad because the target location was Grundy‘s “clubhouse,” so that any phones found there were reasonably likely to have a nexus to the gang‘s criminal activity. Also, the government points out, we must face the realities of drug-dealing and police searches. Criminals do not neatly label which cell phone belongs to whom, and officers would be foolish to trust self-serving denials. Even if the warrant was defective, the government says, officers relied on it in good faith.
This warrant application was full of references to cell phones. It opened with a list of the fourteen “target phones” for the wiretaps. It then summarized selected calls for over seventy pages, not to mention other references to cell phones
The list of target phones also underscored that Grundy and his gang seemed to treat cell phones as fungible and tried to conceal the true owner of each phone. The list of target phones showed, for example, that at least some conspirators had multiple phones, each with a different number. None of the listed phones was used by the person who had registered it. For many phones, subscriber information was unavailable. At least two of those that did list subscriber information used obviously fake names or contact information, such as Tyler Jones of “1234 abcfe ave” (used by Nathaniel Dixson) and “Hector FFFFFFFFF” (used by David Carroll).
The warrant application was less specific about Grundy‘s residences, though. The affidavit explained that Grundy likely knew he was under surveillance and/or a target of rival gangs. Wary of surveillance, he covered his tracks and made it difficult to discern where he would be or stay at any given time. Nonetheless, the warrant application identified the residence to be searched as the “clubhouse” for Grundy‘s gang. The sub-bullet points under this assertion, however, had little to nothing to do with why the residence was a clubhouse. They mostly discussed Grundy‘s family.
Moseby‘s overbreadth argument is that the warrant here was not “as specific as circumstances allowed.” Bishop, 910 F.3d at 338. He says that the warrant should have either limited the phones to be seized to those that were used in drug trafficking or required officers to obtain a second warrant to search any phone that had been seized. These options are
Moseby argues that these mutually reinforcing gaps are especially troubling because they allowed the officers to search the cell phone of every person who happened to be in the same house as Grundy. In Riley v. California, the Supreme Court held that police must obtain a warrant before searching a cell phone found on an arrestee during a search pursuant to arrest. 573 U.S. at 386. The Court noted people‘s heightened privacy interests in cell phones relative to other objects that may be searched pursuant to arrest: “Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee‘s person.” Id. at 393. As
The Riley opinion included sweeping language about the privacy implications of warrantless searches of cell phones, but the
In support of his overbreadth argument, Moseby relies on United States v. Griffith, which held that the Leon good-faith exception did not apply when officers seized a cell phone pursuant to a warrant based on an obviously overbroad and under-specific affidavit. 867 F.3d at 1278–79. In that case, the defendant was suspected of murder. Following the murder, he was incarcerated for another crime for a year. When he was released, the officers sought a warrant to search his house and seize, among other things, all electronics found there, including his cell phone. The affidavit did not contain any information establishing a nexus between the murder and any electronics, let alone that Griffith even had a cell phone. The connection between the hypothetical phone and the crime (the year-old murder) was merely that most people own cell phones, most cell phones capture what their users do, Griffith is a person, we think he‘s a criminal, so we think there exists a cell phone that captured evidence of a crime. The allegation that supposedly provided probable cause to search Griffith‘s
The appellate court reversed the district court‘s denial of Griffith‘s suppression motion: “officers seeking authority to search a person‘s home must do more than set out their basis for suspecting him of a crime.” Id. at 1279. The overbreadth of the warrant was especially striking in that case because it allowed the seizure and search of all electronic devices, and it was unlikely that Griffith‘s current phone would have contained incriminating evidence for a crime that had occurred over a year earlier. Id. at 1278–79. In other words, a reasonable officer should have known that the cell phone request was fishy, that the authorization to seize and search every electronic device in Griffith‘s house (to which he had just returned after prison) was overbroad, and that the justification for the search was circular.
The warrant аpplication here was substantially stronger. See Eggerson, 991 F.3d at 1126 & n.3 (distinguishing Griffith). The central role of cell phones to Grundy‘s gang is apparent throughout the 170-page search warrant application. As noted, the application showed that members of Grundy‘s crew used multiple phones that were unregistered or registered to others. Unlike Griffith, there was an obvious likely connection between the crime and the phones, and there was good reason to think that Grundy and his crew had multiple phones that would be difficult to identify as being used by particular individuals. As the Supreme Court instructed in Riley, law enforcement here obtained a warrant—and one that specifically authorized seizure and search of cell phones.
Based on these facts, a warrant authorizing the seizure and search of any phone found in what was thought to be
This logic emphasizes the assertion that the property was the dealers’ clubhouse as opposed to an ordinary residence. We agree that, as in Griffith, a search warrant may be overbroad by authorizing without probable cause the seizure of all electronic devices in a location. Griffith, 867 F.3d at 1271-76. Moseby argues that the “clubhouse” assertion was too conclusory to support such a sweeping search and that the police officers should have known that this was too “bare bones” to support a warrant. Moseby is correct that there are no other specific factual allegations (such as observations of other gang members entering or leaving) indicating that the residence was in fact a clubhouse.
In support he relies on United States v. Koerth, 312 F.3d 862, 867, 870 (7th Cir. 2002), which criticized a three-paragraph warrant application as conclusory, but we ultimately found that the evidence in Koerth was properly admitted under the good faith exception because the warrant‘s defects were not so obvious that a reasonable officer could not have relied on it in good faith. The line between a conclusory allegation and factual matter can be difficult to draw, even for experienced lawyers and judges. Under Leon, law enforcement officers do not need to patrol that line for magistrate judges. The warrant
Finally, Moseby argues that the officers should have known that the warrant was overbroad because it allowed them to search his phone even after they ascertained that it did not belong to Grundy. This argument misunderstands the good-faith question. The warrant authorized the officers to search every phone found in Grundy‘s clubhouse regardless of who owned it or claimed to own it. A search of a phone they found there was not outside the scope of the warrant, even if it was apparent that the phone did not belong to Grundy. We affirm the denial of Moseby‘s motion to suppress and his conviction.
IV. Sufficiency of the Evidence
Defendants Atwater, Neville, and Beasley all contend that no rational jury could have convicted them and that the district court should have granted their Rule 29 motions for judgment of acquittal. All three contest their convictions on Count 1 for conspiracy to distribute controlled substances,
For challenges based on the sufficiency of the evidence, we review the evidence in the light most favorable to the government. United States v. Bey, 725 F.3d 643, 649 (7th Cir. 2013). Our review is deferential but not a rubber-stamp of affirmance. We
A. Conspiracy or Buyer-Seller?
We consider first Count 1, challenged by all three of these appellants. There is no doubt there was a large conspiracy, but we must address this charge one defendant at a time. Charges for conspiracy to distribute drugs hold “a unique position in our legal sufficiency jurisprudence.” United States v. Pulgar, 789 F.3d 807, 812 (7th Cir. 2015). The government must prove beyond a reasonable doubt that the defendant knowingly agreed, perhaps implicitly, with someone else to distribute drugs. Conspiracies must be distinguished from buyer-seller relationships. An agreement to buy drugs (even a large quantity) is not necessarily an agreement to join a drug distribution conspiracy. United States v. Johnson, 592 F.3d 749, 754 (7th Cir. 2010). To be liable for conspiracy, a defendant must have “‘a stake in the venture’ and therefore exhibit[] ‘informed and interested cooperation.‘” United States v. Brown, 726 F.3d 993, 998 (7th Cir. 2013).
Distinguishing an agreement to distribute drugs from a buyer-seller relationship can be challenging for judges and juries. The issue is often whether circumstantial evidence allows a jury to infer beyond a reasonable doubt that the defendant agreed to enter the conspiracy. Generally speaking, circumstantial evidence of an agreement to distribute drugs
We use a “totality-of-the-circumstances approach in these cases.” Pulgar, 789 F.3d at 813. Nonetheless, there are some rules of thumb that can help us distinguish a conspiracy from a normal buyer-seller relationship: “sales on credit or consignment, an agreement to look for other customers, a payment of commission on sales, an indication that one party advised the other on the conduct of the other‘s business, or an agreement to warn of future threats to each other‘s business stemming from competitors or law-enforcement authorities.” Johnson, 592 F.3d at 755–56. We have sometimes described these factоrs as supporting an inference of heightened trust, but evidence of mutual trust alone is insufficient. See Pulgar, 789 F.3d at 815–16.
Where a person repeatedly buys large quantities of drugs on credit, a jury can infer that the person entered into the conspiracy. Brown, 726 F.3d at 1002. Beyond that, charting the dividing line between a buyer-seller relationship and a conspiracy is as much an art as a science. See Pulgar, 789 F.3d at 813; see also United States v. Colon, 549 F.3d 565, 567–71 (7th Cir. 2008) (collecting cases in this and other circuits on distinguishing buyer-seller relationships and conspiracies). For example, the district court‘s jury instructions here tracked the Seventh Circuit Pattern Instructions:
A conspiracy requires more than just a buyer-seller relationship between a defendant and
another person. In addition, a buyer and seller of controlled substances do not enter into a conspiracy to distribute controlled substances simply because the buyer resells the controlled substance to others, even if the seller knows that the buyer intends to resell the controlled substance. To prove a conspiracy, the government must prove that a buyer and seller had the joint criminal objective of further distributing controlled substances to others.
See
B. Atwater
The evidence that Derek Atwater was part of the Grundy conspiracy was sufficient. The evidence at trial, taken in the light most favorable to the government, showed that he engaged in several large-quantity transactions on credit, which strongly suggests his agreement to distribute the drugs.
The primary testimony against Atwater at trial came from David Carroll, one of Grundy‘s distributors who sold drugs to Atwater. Carroll testified extensively as to Atwater‘s drug purchasing habits, telling the jury that Atwater bought one ounce quantities of methamphetamine regularly over a sustained period, and walking the jury through several sales. Carroll estimated that Atwater bought methamphetamine a “couple times a week” over the course of four or five months.
If the jurors believed Carroll‘s testimony—and we must presume they did—then they could infer beyond a reasonable doubt that Atwater agreed to distribute drugs on behalf of Carroll. Given their history of wholesale-quantity deals on credit, a reasonable jury could have rejected the alternative inference that Atwater and Carroll had only a buyer-seller relationship. Brown, 726 F.3d at 1002; see also Colon, 549 F.3d at 569–70 (purchases on credit can distinguish buyers from coconspirators). We affirm Atwater‘s conviction.
C. Neville
Neville challenges two of his convictions, for the money-laundering conspiracy and the larger drug-trafficking conspiracy. We look first at the evidence of money laundering. The conviction relates to the $84,500 in cash that Grundy had sent to Vizcarra-Millan to purchase drugs and that was seized by law enforcement in August 2017. The factual question that Neville disputes is whether the evidence showed that he had contributed to that pool. He does not dispute that the other elements of conspiracy to launder monetary instruments were met.
The evidence at trial showed that Grundy pooled cash from various lieutenants to purchase larger quantities of drugs. The cash seized in the August 2017 bust came from “ten, twelve, twenty, [or] fifteen” of Grundy‘s associates. The government also offered evidence that Neville contributed to
The jury could reasonably convict. The evidence of Neville‘s participation in Grundy‘s drug pool was, with the exception of Carroll‘s testimony, circumstantial, but the inferential links the jury had tо make to convict were all reasonable. Most of Neville‘s arguments stray beyond our standard of review on appeal. He says that the jury should not have concluded that his statement that he “lost” money referred to the seizure of the $84,500. Perhaps he misplaced another $13,000? He also says that Carroll‘s testimony was vague and had little corroboration. But we review the evidence in the light most favorable to the government. The inference that Neville lost his $13,000 to government agents who had just seized his associate‘s cash was reasonable, and Carroll‘s testimony was not so fantastic that we could treat it as incredible as a matter of law. E.g., United States v. Cherry, 920 F.3d 1126, 1139 (7th Cir. 2019) (“To find a witness‘s testimony to be incredible as a matter of law, it must have been physically impossible for the witness to have observed that which he claims occurred, or impossible under the laws of nature for the occurrence to have taken place at all.”) (cleaned up).
We turn next to Neville‘s Count 1 conviction for conspiracy to distribute drugs. As with Atwater, considerable
Ample evidence allowed the jury to find that Neville was a member of Grundy‘s conspiracy. Neville was a wholesale buyer. He bought large quantities of drugs directly from Grundy and Grundy‘s business partner, Emilio Mitchell II. Other evidence tied the two even more closely. Grundy and Neville once had an extended phone conversation about another Grundy subordinate and whether he was up to the challenges of dealing drugs. Neville also helped other lower-level members of Grundy‘s crew on several occasions. He cross-referred customers to others in Grundy‘s orbit a couple of times, and he stored drugs for another of Grundy‘s dealers. Viewing the evidence in the light most favorable to the government, this was sufficient evidence of intra-conspiracy cooperation. See United States v. Maldonado, 893 F.3d 480, 485 (7th Cir. 2018) (cooperation between defendant and conspirators supported his conspiracy conviction). Put differently, the jury was entitled to reject the possibility that Neville afforded these professional courtesies to competitors rather than to co-conspirators.
This mosaic of evidence was enough for a reasonable jury to reject the alternative hypothesis that Neville was a mere buyer without any additional stake in Grundy‘s enterprise. The courier work alone may be enough to rule out an alternative buyer-seller hypothesis. See United States v. Salinas, 763 F.3d 869, 877–78 (7th Cir. 2014) (affirming courier‘s conspiracy conviction). In addition, Neville time and again helped with the internal affairs of the conspiracy, providing a sounding board for Grundy, helping other dealers, and buying pound quantities of methamphetamine on credit. This all provided ample evidence that Neville was part of the conspiracy. See Moreno, 922 F.3d at 795–96 (circumstantial evidence supported conspiracy conviction); cf. Johnson, 592 F.3d at 755–56 (circumstantial evidence was inadequate to support conspiracy conviction where it failed to distinguish buyer-seller relationship).
Neville attempts to poke holes in various pieces of evidence, but the standard of review is deferential to jury verdicts. For example, he points out that the government did not corroborate testimony with cell-site location data or wiretaps. That is an argument for a jury, not a court of appeals. The
D. Beasley
Beasley was convicted of three offenses: Count 1, for conspiring with the Grundy gang to distribute drugs; Count 16, for possessing the methamphetamine found on his person after Susan Koch‘s car was pulled over and he was searched; and Count 17, for constructive possession of the methamphetamine recovered from Koch‘s home after she told the officers to search there.
Beasley does not challenge the sufficiency of the evidence on Count 16, the 120 grams of methamphetamine found on his person in the traffic stop. He challenges the other two convictions. First, he claims that his limited involvement with Carroll was perfectly consistent with a buyer-seller relationship, so that a reasonable jury would necessarily have entertained a reasonable doubt as to whether he joined the conspiracy. He is correct. The evidence was consistent with both a buyer-seller relationship and nascent involvement in the conspiracy. The jury had no basis to choose the conspiracy finding beyond a reasonable doubt. The jury should not have convicted him on that count. Second, he argues that the evidence at trial did not establish that he possessed the methamphetamine found at Koch‘s home. He is correct that the admissible evidence did not support a finding of that connection beyond a reasonable doubt.
The government‘s evidence supporting the conspiracy charge against Beasley was notably weaker than for Neville
The evidence was consistent with an inference that Beasley joined the conspiracy at an inopportune moment, just as federal agents were closing in. But the evidence was at least equally consistent with an inference that Beasley and Carroll had only a buyer-seller relationship, with Carroll‘s one-time discount and encouragement showing only the work of a good wholesale salesman trying to develop a profitable relationship with a new retailer-customer.
Consider the $100 discount or credit. The evidence did not make clear whether this was a credit, a discount, or a negotiated lower price. The government‘s primary evidence that Carroll once floated Beasley $100 is a wiretap in which Carroll agreed to sell Beasley two ounces of methamphetamine for $700 when the going rate would have been $800. At trial, Carroll described this as a partial front of $100, but he later conceded that he did not extend credit to Beasley.
We do not need to determine whether the $100 is better described as a front or a discount. Either way it was extremely weak evidence of conspiracy. See Johnson, 592 F.3d at 756–57 (rejecting government‘s attempt to characterize a negotiation as a credit and dismissing idea that a $30 discount could support inference of conspiracy at all); United States v. Pulgar, 789 F.3d 807, 814 (7th Cir. 2015) (vague evidence of a couple of fronts insufficient to sustain conspiracy conviction). Even if
The other wisps of evidence are no stronger. Beasley increased his purchases from one ounce to two to seven during the weeks he bought from Carroll. That is not evidence of conspiracy. Context matters. In some cases, a buyer choosing to purchase greater quantities of drugs can signify that he has thrown his lot behind the conspiracy. Here the government has certainly shown that Beasley took to drug dealing, but Count 1 required more. The government needed to show beyond a reasonable doubt that Beasley agreed to distribute drugs for Carroll (which originated with Grundy). Buying multiple large quantities over a long period of time is not by itself sufficient to show such an agreement. Moreno, 922 F.3d at 794, citing Maldonado, 893 F.3d at 485. The same goes for buying an ounce or two a few times and larger amounts a few times. The evidence of growing trust between Carroll and Beasley was consistent with a buyer-seller relationship and
The final piece of conspiracy evidence that the government cites is Carroll‘s encouragement. He congratulated Beasley on his entrepreneurial success and urged him to sell more drugs: “You‘re clowning. I ain‘t going to lie to you ... I am proud of you ... Just stay motivated. Just stay wanting more. Don‘t get comfortable. You got to want more.” We have said that “‘stimulation, instigation,’ or ‘encouragement‘” can indicate an agreement to join the conspiracy where the defendant attempts to stimulate interest in the broader conspiracy. United States v. Colon, 549 F.3d 565, 568 (7th Cir. 2008), quoting Direct Sales Co. v. United States, 319 U.S. 703, 713 (1943). But here, there is no evidence that Beasley was encouraging Grundy or Carroll. Rather, on one occasion, Carroll encouraged Beasley. A seller‘s one-time, unspecific encouragement of a buyer is not enough to prove beyond a reasonable doubt that the buyer agreed to distribute drugs for the seller. See, e.g., Colon, 549 F.3d at 570 (mutual understanding of intent to resell is not “germane” to whether there was a conspiracy); see also
Carroll encouraged a good customer to keep up his purchases and to keep doing a good job. In the non-criminal economy, such praise and encouragement are routine, without turning sellers and buyers into joint venturers. See Pulgar, 789 F.3d at 815–16 (evidence consistent with seller being a good
Finally, we turn to Beasley‘s conviction on Count 17 for possession of the three ounces of methamphetamine found at Koch‘s house. For this count, the government relied on a theory of constructive possession in which an individual is deemed to possess contraband items without a showing of immediate, physical control of the objects. E.g., United States v. Schmitt, 770 F.3d 524, 534 (7th Cir. 2014). “Constructive possession may be established by demonstrating that the defendant knowingly had both the power and the intention to exercise dominion and control over the object, either directly or through others.” United States v. Griffin, 684 F.3d 691, 695 (7th Cir. 2012). In more practical terms, the “owner of an automobile possesses it even when it is parked in a garage and he is miles away. A tenant possesses the apartment he has rented even when he is away on a trip.” United States v. Brown, 724 F.3d 801, 805 (7th Cir. 2013).
The government‘s theory was that Beasley had recently bought two ounces of methamphetamine from Carroll in front of a clothing store called Hangtime. After Susan Koch was pulled over with Beasley as her passenger, she told the police that he had spent the night at her house. During a consensual search of her bedroom, she told the officers that Beasley had left something at her house, and she directed
If Koch had testified at trial that the methamphetamine was Beasley‘s, the conviction would stand, of course. The problem is that Koch did not testify at trial. Others’ reports of her statements blaming Beasley for the drugs found in her home were not admissible as evidence against him. When a police officer started to testify about Koch‘s statements, Beasley properly objected that they were hearsay, that is, out-of-court statements offered to prove the fact of the matter asserted. See
The district court allowed the introduction of Koch‘s statement to the officers as “course of investigation” evidence. See United States v. Law, 990 F.3d 1058, 1063 (7th Cir. 2021) (affirming admission of cumulative course-of-investigation testimony that explained how law enforcement zeroed in on a
Without the two direct connections between Beasley and the methamphetamine, the evidence that Beasley constructively possessed the drugs found in Koch‘s home was too sparse. The government showed only that Beasley bought drugs in front of a clothing store and that a different quantity of drugs was later found in the house of someone he knew next to a bag from that clothing store. An inference that those were the drugs that Beasley purchased in front of Hangtime would have justified further investigation, but it was not enough to support guilt beyond a reasonable doubt.
The convictions of Richard Grundy III, Derek Atwater, Undrae Moseby, Gilberto Vizcarra-Millan, and Ezell Neville are AFFIRMED. James Beasley‘s conviction on Count 16 is AFFIRMED, but his convictions for Counts 1 and 17 are REVERSED. Beasley‘s case is REMANDED for resentencing on Count 16.