United States v. Bonsu, Seth ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1348
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SETH BONSU, also known as QUINCY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 23-1—Robert W. Gettleman, Judge.
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ARGUED JANUARY 8, 2003—DECIDED JULY 16, 2003
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Before FLAUM, Chief Judge, and EASTERBROOK and DIANE
P. WOOD, Circuit Judges.
DIANE P. WOOD, Circuit Judge. After bouncing between
psychiatric diagnoses that found him alternately competent
and incompetent to stand trial, Seth Bonsu was eventually
found competent and tried and convicted by a jury of one
count of conspiring to distribute heroin in violation of 21
U.S.C. § 846, and seven counts of distributing heroin in vio-
lation of 21 U.S.C. § 841. He now insists that the govern-
ment coerced him to testify falsely before the grand jury. In
addition, he argues that there was insufficient evidence to
sustain his conspiracy conviction and that he was improp-
2 No. 02-1348
erly denied a reduction in his sentence pursuant to the
“safety valve” provisions of 18 U.S.C. § 3553(f) and U.S.
Sentencing Guidelines (U.S.S.G.) § 5C.1. Finally, he asserts
that he is entitled to a downward departure from the Sen-
tencing Guidelines because his mental illness, which was
eventually diagnosed as brief Psychotic Disorder, an Axis I
diagnosis listed in the American Psychiatric Association’s
Diagnostic and Statistical Manual of Mental Disorders
(DSM-IV), 302 (4th ed. 1994), was what caused him to cease
cooperating with the authorities and thus his case falls out-
side the “heartland” of cases that the Guidelines contem-
plate. Finding no merit to any of these contentions, we
affirm Bonsu’s sentence and conviction.
I
The son of prominent members of the Ghanian commu-
nity in Chicago, Seth Bonsu strayed from course and chose
to engage in the illegal drug business, despite the fact that
he came close to completing a bachelor’s degree in aeronau-
tics at St. Louis University in Missouri. The government
discovered him when it retained a paid informant to en-
snare some Nigerian heroin traffickers. With the help of the
informant, Bonsu sold or delivered small quantities of her-
oin on at least five occasions, not realizing that his custom-
ers were aligned with the government. His career ended on
January 14, 1998, when he attempted to close a major sale
of heroin. Just after he handed over two samples of a prom-
ised four- to six-kilogram batch of heroin, FBI agents
closed in and arrested him. Four to six kilograms was a
large amount for Bonsu, and he had been compelled to piece
together his supplies from a variety of middlemen, none of
whom was willing to furnish the entire amount on his own.
The government relied on the group sale aspect of the deal
to support its charge that Bonsu and the others were in-
volved in a drug conspiracy.
No. 02-1348 3
Bonsu’s cooperation with the government began the mo-
ment he was arrested. As FBI agents listened, he placed a
phone call to a co-conspirator from the McDonalds where he
had been arrested. The agents also learned valuable infor-
mation from Bonsu’s pager and his address book, both of
which they had seized at the time of the arrest. Bonsu
continued to cooperate after his arrest by meeting four or
five times with the government to proffer information and
to place additional phone calls to individuals who soon be-
came co-defendants. All of this preceded Bonsu’s grand jury
testimony. Before the grand jury, Bonsu read a prepared
statement spelling out the details of his drug dealing. His
testimony proceeded without incident, and the government
and Bonsu then hammered out the details of a plea agree-
ment that put him in the ballpark for a sentence that would
have been half of the mandatory minimum ten-year term
provided by the statute. That benefit, however, was contin-
gent upon his continued cooperation.
Bonsu was set to testify against his co-conspirators at
their trial when things began to unravel. First, Bonsu in-
dicated that he was dissatisfied with the private lawyer
whom his family had retained after he fired his public de-
fender (a step he took right before the plea agreement was
signed). Then, on the eve of his co-conspirators’ trial, Bon-
su’s privately retained lawyer (Lawyer 2) asked the court
to conduct a competency evaluation because of Bonsu’s
increasingly hostile and irrational behavior. Around this
time Bonsu signaled that he was no longer willing to coop-
erate with the government. Eventually, he filed a pro se
motion to withdraw his guilty plea, insisting that the gov-
ernment had coerced him into giving untruthful grand jury
testimony. The government responded with its own motion
to rescind the plea agreement, in light of Bonsu’s refusal to
continue to cooperate. Bonsu then fired his private lawyer
and a new public defender (Lawyer 3) was appointed. This
arrangement was short-lived, as Bonsu did not believe that
4 No. 02-1348
a defense lawyer who was paid by the government could
represent his interests. A second private lawyer (Lawyer 4)
was hired by his family, but he too was later replaced by
Bonsu’s current, court-appointed lawyer (Lawyer 5).
From the time that Lawyer 2 came onto the scene,
Bonsu’s competency became a central issue. The court
responded by ordering a series of competency evaluations
that followed a distinct pattern. First, a forensic psychia-
trist evaluated Bonsu and concluded that Bonsu suffered
from certain personality traits or disorders that made it dif-
ficult to work with him, but that he was not incompetent to
stand trial. Next, Bonsu’s attorney provided information to
the evaluating doctor about the quality of the lawyer’s rela-
tionship with Bonsu, including specific details on the diffi-
culties of discussing his case with him. The examining doc-
tor then reconsidered his initial diagnosis.
The first time this happened, a new doctor, Dr. Eric
Woodward of the Isaac Ray Center for Psychiatry and the
Law, found that Bonsu suffered from “a delusional disorder,
persecutory type” and that he was incompetent to stand
trial. The court then held an evidentiary hearing during
which conflicting evidence was presented on Bonsu’s com-
petency to stand trial. As a result of this hearing, the court
ordered Dr. Bernard Rubin, a third doctor, to conduct an-
other competency evaluation. This evaluation initially re-
sulted in Dr. Rubin’s diagnosis of an Axis II, personality
disorder, which in the doctor’s opinion did not meet the
legal definition of incompetence to stand trial. Upon re-
ceiving further information from Bonsu’s lawyer and the
Assistant United States Attorney (AUSA) who was prose-
cuting the case, Dr. Rubin reassessed his initial diagnosis
and concluded that Bonsu suffered from brief psychotic
disorder, an Axis I diagnosis, which, when aggravated,
diminished Bonsu’s contact with reality and made it impos-
sible for him to cooperate meaningfully with his lawyer and
participate in his own defense. As a result, the court found
No. 02-1348 5
Bonsu incompetent at that time to stand trial. On June 21,
2000, Bonsu was ordered transferred to the Federal Bureau
of Prisons, Federal Medical Center in North Carolina,
where he remained for treatment and assessment until the
Mental Health Division of the Center in November 2000,
submitted to the district court a Certificate of Restoration
of Competency to Stand Trial. The psychiatrist and psychol-
ogist who prepared the supporting report concluded that
Bonsu “is not now and likely never was severely mentally
ill.”
During the period in which the court had taken Bonsu’s
competency to stand trial under advisement, Bonsu himself,
his various lawyers, and the government all filed a series of
motions to undo the cooperative efforts that had previously
led to Bonsu’s grand jury testimony and guilty plea. The
court ultimately granted Bonsu’s motion to withdraw his
guilty plea and allowed the government to rescind the plea
agreement. As soon as Bonsu was restored to competency
and returned from North Carolina, a trial date was set and
the case proceeded to trial. The government’s case included
testimony from Bonsu’s former girlfriend, who played a
minor role in his heroin dealing, various FBI agents who
participated in the events leading up to and including
Bonsu’s arrest, and extensive testimony from the govern-
ment’s paid informant, who walked the jury through twen-
ty-six tape-recorded conversations with Bonsu. The tapes,
which reflected both telephone calls and face-to-face meet-
ings, included many discussions about Bonsu’s efforts to or-
chestrate the interrupted four- to six-kilogram sale.
II
Bonsu begins with his argument that the district court
committed reversible error when it rejected his motion for
a reduced sentence pursuant to U.S.S.G. § 5C1.2, and so
shall we. The safety valve provision authorizes the district
6 No. 02-1348
court to depart from a statutory mandatory minimum sen-
tence for certain offenders who also meet the criteria set
forth in 18 U.S.C. § 3553(f)(1)-(5): they must be first time
offenders, not in a leadership position, who committed
crimes that did not involve violence or threats of violence,
or result in death, and they must truthfully have provided
the government with all relevant information and evidence
that they had concerning their offense. Our review of the
district court’s denial of Bonsu’s motion for a reduced sen-
tence under § 5C1.2 is for clear error. United States v.
Williams, 202 F.3d 959, 964 (7th Cir. 2000).
Bonsu’s argument on appeal begins with the factual prop-
osition that he cooperated fully with the government while
he was of sound mind, and ceased his cooperation only
when his mental condition deteriorated. Under those cir-
cumstances, he continues, it was improper to deny him the
benefits of the safety valve provision. As stated in his brief,
Bonsu’s “belief that he was coerced into reading the affida-
vit prepared by the government in front of the grand jury
would reflect a delusional belief that there was a conspiracy
against him.” Nevertheless, even if we were to accept the
fact that there was a period of time during which his men-
tal condition made it impossible for him to cooperate, this
still does not answer the question why he did not resume
cooperating once he was restored to competency—and in-
deed, why he is still continuing to take positions inconsis-
tent with cooperation, such as his argument that his grand
jury testimony was false. The district court noted that after
Bonsu was restored to competence, he could have acknowl-
edged that his grand jury testimony was correct and ac-
cepted the consequences of his conduct. Instead, “[h]e chose
as a competent man to continue to deny his criminal in-
volvement in this case and to put the government to its
proof.” Accordingly, the district judge concluded that it
would be wrong to allow Bonsu to benefit from the safety
valve, because he did not cooperate in good faith from the
No. 02-1348 7
time his competency was restored. Importantly, the district
court in no way assumed that a defendant has a duty to
cooperate during the time period when he or she is actually
incompetent.
Bonsu insists that because the Guidelines say that the
safety valve is appropriate where cooperation is forthcoming
“not later than the time of the sentencing hearing,” U.S.S.G.
§ 5C1.2(a)(5), he is nonetheless entitled to its benefit. He
reasons that because he cooperated fully with the govern-
ment until he became too ill to continue, and because he
eventually offered to resume cooperation, his sentence
should have been reduced. Although it is true that Bonsu
did offer to resume cooperation after he was restored to
competency and before his sentencing hearing, the district
court committed no clear error when it found that Bonsu
was not entitled to a reduced sentence. It quite reasonably
decided to focus on Bonsu’s cooperation during the entire
time period after he was restored to competency and found
fit to stand trial. During this period Bonsu insisted that his
grand jury testimony was coerced and untruthful. Bonsu
also put the government to its burden at trial after he was
restored to competency. These post-restoration facts are not
outweighed by Bonsu’s belated offer to resume cooperation
with the government. If upon restoration to competency
Bonsu had decided to reverse course once again and resume
cooperation with the government, the district court signaled
that it would have given serious consideration to his safety
valve arguments. But that is not what he did, and we can
find no error in the district court’s decision to deny him the
benefits of the safety valve guideline. See, e.g., United
States v. Thompson, 106 F.3d 794, 801 (7th Cir. 1997).
Bonsu also contends that he was improperly denied a
downward departure under U.S.S.G. § 5K2.0, which author-
izes a district court to depart from a mandatory minimum
sentence under the Sentencing Guidelines where there are
“aggravating or mitigating circumstances of a kind or de-
8 No. 02-1348
gree not adequately taken into consideration by the Com-
mission.” Koon v. United States, 518 U.S. 81, 94 (1996);
U.S.S.G. § 5K2.0; 18 U.S.C. § 3553(b). This provision
acknowledges that the Guidelines focus on the “heartland,”
or typical cases, but leave room for departure (upward or
downward) in atypical cases.
We need not devote much attention to this argument
because, as the government correctly notes, our court lacks
jurisdiction to review the district court’s ruling in the first
instance. This is so because the district judge in this case
fully understood that he had the authority to depart from
the Sentencing Guidelines if he believed that such a
departure was warranted, but he chose not to depart. See
15B CHARLES A. WRIGHT, ARTHUR R. MILLER & EDWARD H.
COOPER, FEDERAL PRACTICE & PROCEDURE § 3918.8, at 576
(2d ed. 1992) (“The courts of appeals all have agreed that a
refusal to make a downward departure will not be reviewed
beyond the point of ensuring that the district court under-
stood its power to make a departure.”). See also United
States v. Crucean, 241 F.3d 895, 898 (7th Cir. 2001); United
States v. Poff, 926 F.2d 588, 590 (7th Cir. 1991) (en banc);
United States v. Ekeland, 174 F.3d 902, 906-07 (7th Cir.
1999); United States v. Franz, 886 F.2d 973, 981 & n.8 (7th
Cir. 1989).
In this case, it is clear that the district court recognized
its authority to depart from the Sentencing Guidelines. The
court expressed the view that such a departure would have
been proper, wholly apart from the proposed plea agree-
ment or any other details of the case, if Bonsu had fully re-
sumed cooperating with the government after he was
restored to competency. The court further commented that
granting a downward departure without evidence of such
continued cooperation would be unjustified. This is pre-
cisely the type of discretionary decision that we lack juris-
diction to review.
No. 02-1348 9
That leaves two loose ends to tie up. First, Bonsu sug-
gests that the evidence was insufficient to support a con-
viction on the conspiracy charge. We agree with the govern-
ment that Bonsu’s challenge to the sufficiency of the evi-
dence is forfeited by his lawyer’s failure to develop this ar-
gument through citation to the relevant portions of the
record and supporting authority. Hartmann v. Prudential
Ins. Co. of Am., 9 F.3d 1207, 1212 (7th Cir. 1993). We add
for completeness that sufficiency challenges are notoriously
difficult to win in any event, and that the record contains
ample evidence on which the jury could have based its ver-
dict in this case.
Finally, we reject Bonsu’s remaining argument—that the
district court erred in denying his motion to suppress his
grand jury testimony on the basis of prosecutorial miscon-
duct. In doing so we note how troubled we are that Bonsu’s
opening brief to this court failed to concede that the truth-
fulness of his grand jury testimony and the propriety of the
prosecutor’s conduct leading up to that testimony was the
subject of a full hearing in the district court, and that the
district court resolved this issue in the government’s favor
after that hearing. At the hearing, the district court heard
testimony from Bonsu, Paul Flynn, his former public
defender, and FBI Agent John Jimenez, the case agent in
charge of the investigation. They presented conflicting ac-
counts on three important questions: (1) whether the
government used threatening and intimidating tactics in
order to secure from Bonsu a version of the events that was
favorable to its prosecution of the case; (2) whether Bonsu’s
lawyer or substitute counsel from the Federal Defender’s of-
fice was present in the proffer sessions leading up to
Bonsu’s grand jury testimony and on the day that he actu-
ally testified before the grand jury; and (3) whether Bonsu
himself chose to read the prepared statement to the grand
jury rather than answering questions, and if he chose to
read a statement, whether he was given an opportunity to
10 No. 02-1348
review his prepared testimony before he had to appear be-
fore the grand jury. The district court resolved all three
questions against Bonsu.
Moreover, as the government points out in its brief, there
was really nothing to “suppress” at the trial itself. The gov-
ernment did not try to introduce the grand jury transcript
at the trial before the petit jury. Whatever errors may have
occurred before the grand jury became harmless once the
petit jury convicted Bonsu. See United States v. Mechanik,
475 U.S. 66, 73 (1986). So, for a variety of reasons, we find
no merit in this argument either.
III
For these reasons, we AFFIRM the judgment of the district
court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-16-03