United States v. Bender, Vishnu ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-3572 & 06-3659
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
V ISHNU B ENDER and T ONY JOHNSON,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Southern District of Indiana, Evansville Division.
No. 04 CR 17—Richard L. Young, Judge.
____________
A RGUED S EPTEMBER 13, 2007—D ECIDED A UGUST 13, 2008
____________
Before E ASTERBROOK, Chief Judge, and C UDAHY and
S YKES, Circuit Judges.
S YKES, Circuit Judge. Vishnu Bender and Tony John-
son were convicted of conspiracy to distribute cocaine,
cocaine base, and marijuana stemming from their in-
volvement in a drug-distribution network operating
between Chicago and Evansville, Indiana. Bender chal-
lenges the sufficiency of the evidence of a conspiracy and
also claims he was denied his counsel of choice in viola-
2 Nos. 06-3572 & 06-3659
tion of the Sixth Amendment. Johnson argues the district
court improperly denied his motion for a new trial. That
motion was premised on an alleged violation of the dis-
trict court’s witness-sequestration order. In support of the
motion, Johnson submitted a letter from a jail inmate who
claimed to have overheard some of the coconspirator-
witnesses discussing the case in their jail cell and express-
ing a willingness to lie in order to get reduced sentences.
We affirm. The evidence of Bender’s involvement in
the charged drug conspiracy was overwhelming and
included the usual array of intercepted telephone conver-
sations, drug-seizure evidence, and extensive testimony
from coconspirators regarding Bender’s role in main-
taining the wholesale flow of drugs from Chicago to
Evansville. Regarding the Sixth Amendment claim, the
attorney Bender wanted to represent him declined to do
so once alerted by the government to a possible conflict
of interest. Moreover, by the time of trial, the attorney’s
law license was suspended as a consequence of his own
conviction on a drug charge. There was no Sixth Amend-
ment violation.
Finally, Johnson’s argument about an alleged violation
of the sequestration order is misplaced. The court’s order
was entered pursuant to Rule 615 of the Federal Rules of
Evidence, which permits the trial court to exclude witnesses
from the courtroom “so that they cannot hear the testi-
mony of other witnesses.” There is no evidence suggesting
that any of the coconspirator-witnesses conveyed the
substance of their testimony to one another. Regardless,
only one of the witnesses the inmate-informant allegedly
Nos. 06-3572 & 06-3659 3
overheard discussing the case in the jail actually testified
about Johnson’s involvement in the conspiracy; the testi-
mony of the others pertained to Bender only. Johnson
had ample opportunity at trial to cross-examine this
witness about his motives and incentives for testifying.
I. Background
Bender and Johnson were indicted as a result of a
coordinated federal, state, and local drug investigation
centering on Evansville, Indiana. The original indictment
named ten defendants. It alleged that in 2003-2004 Bender,
operating out of Chicago, supplied large quantities of
cocaine, cocaine base, and marijuana to Emanuel Cabell
and Dennis Turner in Evansville, who in turn redis-
tributed the drugs to Johnson, Eric McKinney, Jesha Fox,
Ebon Green, John Culley, Andrew Owen, and Demarco
Lane, all of whom resold the drugs to users in Evansville.
The defendants were charged with conspiracy to dis-
tribute cocaine base, powder cocaine, and marijuana in
violation of 21 U.S.C. §§ 841 and 846. All except Johnson
and Bender pleaded guilty.
Bender was initially represented by appointed counsel
but early on in the case retained Attorney David Scacchetti
to represent him. Before Scacchetti entered an appearance,
however, the government informed the district court that
Scacchetti was then representing Robert Lee Johnson,
another participant in the Evansville conspiracy, and that
the dual representation might pose a conflict because
Robert Lee Johnson might be added as a defendant by
superseding indictment and also might eventually testify
4 Nos. 06-3572 & 06-3659
against Bender.1 The court instructed Scacchetti to look
into the potential conflict. The next day, Scacchetti
advised the court that he had a conflict of interest and
could not represent Bender. At the next status conference,
Bender indicated that Scacchetti had withdrawn from
his case but was assisting him in finding new counsel.
Bender protested, however, that he did not understand
the conflict. The following month Scacchetti was charged
with possession of cocaine and voluntarily closed his
law practice. A few months later—before the trial in this
case commenced—Scacchetti pleaded guilty and agreed
to a two-year suspension of his law license.
At the start of trial, the district court entered an order
excluding witnesses from the courtroom during the
testimony of other witnesses pursuant to Rule 615 of the
Federal Rules of Evidence. At trial the jury heard testimony
regarding the operation of the conspiracy from state and
local law enforcement officers, agents of the Drug En-
forcement Administration (“DEA”), and some of the
coconspirators. The law enforcement officers and DEA
agents testified that they observed Johnson sell drugs to
an undercover informant and obtained wiretaps of con-
versations between Bender, Johnson, and other cocon-
spirators. They testified that the intercepts indicated
extensive use of code words by the conspirators in an
effort to conceal their drug transactions. Coconspirator
Dennis Turner, Bender’s cousin, testified that Bender
regularly sold large quantities of cocaine to him on credit
1
Robert Lee Johnson is not related to defendant Tony Johnson.
Nos. 06-3572 & 06-3659 5
and delivered the drugs through intermediaries for
resale in Evansville. Fox, Lane, and Culley corroborated
this testimony and also confirmed the agents’ testimony
about the meaning of the coded language heard on the
wiretap intercepts. Fox also testified to receiving
quantities of cocaine from Johnson for resale in Evansville.
The jury found both defendants guilty.
Prior to sentencing, Johnson received a letter from
Henry Hibbs, an inmate at the Henderson County Deten-
tion Center. In the letter Hibbs asserted that while sharing
a holding cell at the jail, Culley, McKinney, Fox, and Lane
had discussed the case and their desire to reduce their
prison exposure and specifically indicated that they
would say “whatever it takes” to get reduced sentences.
Johnson moved for a new trial pursuant to Rule 33 of the
Federal Rules of Criminal Procedure, arguing that Hibbs’s
letter was evidence that the witnesses had violated the
court’s sequestration order and expressed a willingness
to lie on the witness stand.
The district court denied the motion, concluding there
was no evidence that any witness had relayed the sub-
stance of his or another witness’s testimony, and therefore
no evidence of a violation of the sequestration order. The
court noted that only Culley, Fox, and Lane had testified
at trial, and that Culley and Lane did not testify to any
facts pertaining to Johnson. The court concluded that to
the extent the information in Bibbs’s letter constituted
“new evidence,” it was cumulative because the cocon-
spirator-witnesses had been fully cross-examined on their
motives and incentives to testify. Finally, the court held
6 Nos. 06-3572 & 06-3659
that the evidence against Johnson was overwhelming, so
the information in Bibbs’s letter could not possibly have
made a difference in the outcome. The court sentenced
Johnson and Bender to the statutory mandatory term of
life in prison.
II. Analysis
A. Sufficiency of the Evidence
Bender argues that the evidence at trial established only
his involvement in a buyer-seller relationship, not a
conspiracy to distribute drugs. This argument is often
made but rarely successful. Our review is highly deferen-
tial; we view the evidence in the light most favorable to
the government, and the jury’s verdict must be upheld if
“ ‘any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’ ” United
States v. Albarran, 233 F.3d 972, 975 (7th Cir. 2000) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)). A defendant’s
involvement in the distribution of large quantities of
drugs—while itself not sufficient to establish a drug
conspiracy—suffices to prove a conspiracy when com-
bined with other evidence, such as: (1) standardized
transactions, (2) sales on credit, (3) a continuing relation-
ship, and (4) an understanding that the drugs would be
resold. United States v. Adkins, 274 F.3d 444, 450 (7th Cir.
2001).
Here, the evidence was sufficient for the jury to con-
clude that Bender was involved in the charged drug-
distribution conspiracy. Among other things, the govern-
Nos. 06-3572 & 06-3659 7
ment’s case included Turner’s testimony about the large
quantities of drugs Bender sold; the evidence that Bender
sold the drugs to Turner on credit; and the frequency of
Bender’s large-quantity sales. We have held that selling
drugs on credit is especially indicative of a conspiracy
because it gives the seller a stake in the buyer’s successful
resale of the drugs. United States v. Ferguson, 35 F.3d 327,
331 (7th Cir. 1994) (“the repeated ‘fronting’ of cocaine,
alone, has been held sufficient to support the jury’s con-
clusion that the defendant had knowingly joined a dis-
tribution conspiracy”).
Moreover, coconspirator Cabell testified that he acted as
a “runner” for the Evansville drug conspiracy, delivering
cocaine from Bender to Turner but having Turner pay
Bender directly. This demonstrates both standardized
transactions between Bender and Turner and the use of a
regular runner, both telltale markers of involvement in
a conspiracy. United States v. Payton, 328 F.3d 910, 911 (7th
Cir. 2003) (“Milton testified that he worked as a ‘runner’
for his son’s crack operation . . . . This testimony alone
is sufficient evidence of a distribution conspiracy.”).
Bender does not directly challenge this evidence. He
argues instead that it shows nothing more than a series of
sales between buyer and seller. To the contrary, the
conspiracy evidence was abundant—including repeated
sales of large drug quantities on credit, standardized
transactions over a sustained period of time, and use of a
runner—and easily sufficient for a rational jury to con-
vict him.
8 Nos. 06-3572 & 06-3659
B. Sixth Amendment Claim
An element of the right to counsel under the Sixth
Amendment is “the right of a defendant who does not
require appointed counsel to choose who will represent
him.” United States v. Gonzalez-Lopez, 548 U.S. 140, 144
(2006) (citing Wheat v. United States, 486 U.S. 153, 159
(1988)). The right is not unlimited, of course. The “right to
counsel of choice does not extend to defendants who
require counsel to be appointed for them.” Id. at 151 (citing
Wheat, 486 U.S. at 159, & Caplin & Drysdale v. United States,
491 U.S. 617, 624 (1989)). Also, a defendant may not “insist
on representation by a person who is not a member of the
bar, or demand that a court honor his waiver of conflict-
free representation.” Id. at 152 (citing Wheat, 486 U.S. at
159-60)). A violation of the Sixth Amendment right to
counsel of choice is a structural error and not subject to
harmless-error analysis. Id. at 149-50. Bender contends
the district court erroneously disqualified Scacchetti
from representing him based on a potential conflict of
interest that never materialized. We review a district
court’s disqualification of counsel for abuse of discretion.
See Wheat, 486 U.S. at 164.
The main problem with Bender’s argument is that the
district court never actually disqualified Scacchetti.
Although Scacchetti initially agreed to represent Bender,
he never entered an appearance and withdrew after
concluding that his joint representation of Bender and
coconspirator Robert Lee Johnson would create a conflict
of interest. That the government raised the conflict ques-
tion and the court prompted the conflict inquiry is immate-
Nos. 06-3572 & 06-3659 9
rial. That the potential conflict never ripened into an
actual conflict is likewise immaterial.2 Bender suggests
he should have been given the opportunity to waive
the potential conflict of interest, but as we have noted, the
right to counsel of choice does not include the right to
force the court to give effect to a waiver of a conflict of
interest. Gonzalez-Lopez, 548 U.S. at 152; Wheat, 486 U.S. at
159-60. Here, the potential for conflicting interests was
present; Scacchetti himself determined he could not
undertake the joint representation and on that basis
declined to represent Bender.
In any event, by the time of trial Scacchetti was no
longer a member of the bar in good standing. His license
to practice law had been suspended in connection with
his own drug conviction, and therefore he could not
have represented Bender. Although a denial of the Sixth
Amendment right to counsel of choice is a structural
error not susceptible to analysis for its prejudicial effect on
the outcome of trial, there can be no violation of the right
if the defendant’s “counsel” of choice is not licensed to
practice law. See Gonzalez-Lopez, 548 U.S. at 152; Wheat, 486
U.S. at 159.
2
Robert Lee Johnson was not added as a defendant in this case
and did not testify against Bender; he was separately indicted
and convicted for his involvement in the Evansville drug
conspiracy.
10 Nos. 06-3572 & 06-3659
C. Alleged Violation of Sequestration Order
Johnson challenges the district court’s denial of his
motion for a new trial. The motion was based on alleged
“new evidence,” specifically the letter from Henry Bibbs,
an inmate in the local jail who claimed to have over-
heard Fox, Culley, McKinney, and Lane talking about the
case in a holding cell. Without giving specifics, Bibbs
asserted that these coconspirator-witnesses said they
would do “whatever it takes,” including lie, to get reduced
sentences. Johnson argued that this violated the court’s
sequestration order and was grounds for a new trial.
The district court denied the motion, concluding that
(1) Bibbs’s letter did not say the witnesses had relayed
the substance of their testimony to each other and was
therefore not evidence of a violation of the sequestration
order; (2) the alleged “new evidence” was merely im-
peaching and cumulative, as Johnson and Bender had
extensively cross-examined the witnesses about their
motivation to lie; and (3) any error was harmless, given
the overwhelming evidence of Johnson’s guilt.
A district court’s denial of a Rule 33 motion for a new
trial is reviewed for abuse of discretion. United States v.
Reed, 2 F.3d 1441, 1451 (7th Cir. 1993). As a threshold
matter, we share the district court’s skepticism that
Bibbs’s letter is evidence of a violation of the sequestra-
tion order. The sequestration order excluded witnesses
from the courtroom so they could not hear and conform
their testimony to that of other witnesses. See F ED. R. E VID.
615. This evidentiary and procedural precaution is de-
signed to curb collusion by witnesses but does not address
Nos. 06-3572 & 06-3659 11
the separate problem of witnesses who coordinate their
stories before testifying. Bibbs’s letter is entirely general,
but he appears to be alleging that the coconspirators
discussed the case in the jail before trial and shared their
desire to give the sort of testimony that would be most
likely to secure reduced sentences in their own cases. Bibbs
did not say that they conveyed the substance of their
testimony to one another. Bibbs’s letter does not estab-
lish a violation of the sequestration order.
Nor does it establish grounds for a new trial. To win a
new trial based on newly discovered evidence, the defen-
dant must show that “ ‘the evidence (1) came to [his]
knowledge only after the trial; (2) could not have been
discovered sooner and [he] exercised due diligence; (3) is
material, and not merely impeaching or cumulative; and
(4) would probably lead to an acquittal in the event of a
retrial.’ ” Reed, 2 F.3d at 1451 (quoting United States v. Van
Daal Wyk, 840 F.2d 494, 500 (7th Cir. 1988)) (alteration
in original). A motion for a new trial premised on an
allegation of false testimony is subject to a more focused
analysis that asks whether:
(a) [t]he court is reasonably well satisfied that the
testimony given by a material witness is false[;]
(b) [t]he jury might have reached a different conclu-
sion absent the false testimony or if it had known
that testimony by a material witness was false[; and]
(c) [t]he party seeking the new trial was taken by
surprise when the false testimony was given and was
unable to meet it or did not know of its falsity until
after the trial.”
12 Nos. 06-3572 & 06-3659
Id. (internal quotation marks omitted); see also United States
v. Reed, 986 F.2d 191, 192-93 (7th Cir. 1993); United States
v. Mazzanti, 925 F.2d 1026, 1029 (7th Cir. 1991).
Johnson failed to carry his burden on either of these
inquiries. His assertion that the coconspirators lied is
entirely general. He makes no effort to identify which
specific portions of their trial testimony may have been
false. Only Fox testified about Johnson’s involvement in the
conspiracy; the others testified about Bender, not Johnson.
The allegations in Bibbs’s letter cannot possibly carry
the weight Johnson puts on them; their context and con-
tent do not come close to establishing to the “reasonable
satisfaction” of the court that the coconspirator witnesses
gave materially false testimony.
We also agree with the district court that the purported
“new” evidence would not have influenced the jury’s
verdict. First, the evidence against Johnson, like that
against Bender, was overwhelming, consisting of (among
other evidence) Johnson’s intercepted phone conversa-
tions as well as the coconspirator testimony. Second, the
coconspirators were vigorously cross-examined about the
motivations and incentives for their testimony, including
their desire to obtain reduced sentences. Bibbs’s letter,
even if accepted at face value, would have been cumula-
tive impeachment evidence, generally insufficient to
warrant a new trial. Reed, 2 F.3d at 1451. Finally, there is
no indication that Johnson was unaware or surprised that
there was reason to suspect the coconspirators’ motives
for testifying. That is almost always the case, and indeed,
as we have noted, their motivations were thoroughly
Nos. 06-3572 & 06-3659 13
tested by cross-examination here. The district court was
well within its discretion to deny Johnson’s motion for
a new trial.
A FFIRMED.
8-13-08