United States v. Jeremiah Berg , 714 F.3d 490 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2118
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JEREMIAH S. B ERG ,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 10-CR-207—William C. Griesbach, Chief Judge.
A RGUED N OVEMBER 28, 2012—D ECIDED A PRIL 9, 2013
Before K ANNE, W OOD , and SYKES, Circuit Judges.
K ANNE, Circuit Judge. Jeremiah S. Berg ran a cross-
border smuggling scheme that traded American arms
for Canadian cannabis. Later, he supplied several bags
of cocaine to a dealer who unwittingly resold them to a
government agent. On July 16, 2010, Berg confessed to
both sets of crimes. Berg apparently hoped that his co-
operation would win him leniency. Instead, the govern-
ment took Berg to trial, and a jury convicted him. Berg
now appeals, arguing that his two sets of crimes were
2 No. 12-2118
improperly tried in one case and that he was denied
the opportunity to call an exculpatory witness. We
disagree and affirm.
I. B ACKGROUND
Jeremiah S. Berg first came to the attention of law
enforcement in March 2008. The federal Bureau of
Alcohol, Tobacco, Firearms and Explosives (“ATF”) was
investigating two illegal gun dealers: Catherine and
Juan Elizondo. After the ATF executed a search warrant
on the Elizondos’ house, the Elizondos agreed to help
gather evidence about their customers. Berg happened
to be one of them. Between April and October 2008, Berg
met with the Elizondos and an undercover ATF agent
several times. Berg expressed interest in buying more
guns, although he and the Elizondos never actually
consummated another sale. The Elizondos also linked
Berg with two guns that were later recovered by Canadian
law enforcement. However, for reasons that are not
entirely clear, the ATF did not immediately follow up
on Berg’s case.
More than a year later, in April 2010, Berg attracted the
attention of the Brown County, Wisconsin, Drug Task
Force (“WDTF”). An undercover informant, Russell
LaRock, arranged to buy cocaine from Roland Peynetsa.
Berg, it turns out, was Peynetsa’s source—whenever
LaRock asked Peynetsa for cocaine, Peynetsa would call
Berg, and Berg would supply it. On three different days in
April and May 2010, law enforcement observed Berg
supply about fifty grams of cocaine to Peynetsa, who
No. 12-2118 3
then resold it to LaRock. LaRock was later caught trying
to steal $20 in WDTF buy money, and the WDTF termi-
nated their cooperation with him in late May 2010. On
June 22, 2010, the WDTF arrested Peynetsa. The
following day, they arrested Berg as well.
After his June 23, 2010 arrest, Berg waived his Miranda
rights and started talking. Berg admitted to being a
regular cocaine dealer and to having sold cocaine to
Peynetsa. Berg also said that, before moving into the
cocaine racket, he had sold high-grade Canadian mari-
juana. Berg was released after agreeing to cooperate
with the WDTF. He later provided some help to WDTF
investigators, including participation in a controlled
drug buy from one of his suppliers. By July 16, 2010,
federal agents at the ATF had become aware of Berg’s
arrest and arranged for a non-custodial interview.
During the interview, Berg explained how he had traded
guns for Canadian marijuana in the past. After the inter-
view, Berg agreed to continue working with WDTF. A
few weeks later, Berg broke off contact with law enforce-
ment and absconded from his state-law probation. A
warrant was issued for his arrest, and he was finally
apprehended on September 2, 2010.
On October 13, 2010, a federal grand jury indicted
Berg on six counts: conspiracy to distribute marijuana;
use of firearms to further a marijuana conspiracy; posses-
sion of a firearm by a felon; and three counts of conspiring
to distribute cocaine. All of the charges were tried
together in this case. At trial, Berg claimed that his confes-
sions were false and that he was innocent of all of the
4 No. 12-2118
charges. He had only admitted otherwise, he claimed,
because he was afraid of prosecution and wanted the
agents to think he would be valuable as a confidential
source. The jury disbelieved Berg and convicted him on
all six counts. He now appeals, arguing that (1) his gun
and marijuana charges should have been severed from
his cocaine charges; and, (2) the district court violated
his Sixth Amendment rights by failing to call Peynetsa
during trial.
II. A NALYSIS
A. Consolidation of Berg’s Charges in One Trial
Berg first claims that his marijuana trafficking counts
and his cocaine trafficking counts should have been tried
separately. Because the jury heard both sets of charges
at the same time, Berg argues, it may have inferred he
was guilty because he had a propensity to commit crimes
and not because of the strength of the evidence. As
with any severance claim, this claim necessarily contains
two distinct issues. See United States v. Windom, 19 F.3d
1190, 1196 (7th Cir. 1994). The first is joinder—whether
the two sets of charges had enough in common to be
tried in the same case. Id. The second is sever-
ance—whether, despite being properly joined, the two
sets of charges nevertheless should have been tried sepa-
rately to avoid undue prejudice. Id.Berg did not raise either issue before or during
trial. Instead, he raised both for the first time after trial
in a motion for a new trial under Federal Rule of
No. 12-2118 5
Criminal Procedure 33. As a result, the issues are for-
feited.1 Recognizing this problem, Berg asks us to
1
The Supreme Court has explained that forfeiture and waiver
are two different creatures; “forfeiture is the failure to make the
timely assertion of a right,” while “waiver is the intentional
relinquishment or abandonment of a known right.” United
States v. Olano, 507 U.S. 725, 733 (1993) (internal quotation
marks omitted); accord Kontrick v. Ryan, 540 U.S. 443, 458 n.13
(2004). Forfeited errors may still be reviewed for plain error,
while waived errors are “extinguish[ed]” and cannot be re-
viewed on appeal. Olano, 507 U.S. at 733; accord United States v.
Tichenor, 683 F.3d 358, 363 (7th Cir. 2012). We think that
“forfeiture” more accurately describes what happened here.
There is no evidence that Berg intentionally relinquished his
rights. Furthermore, we frequently apply plain error review to
joinder and severance claims not raised before trial. See, e.g.,
United States v. Anderson, 450 F.3d 294, 301 (7th Cir. 2006);
United States v. Febus, 218 F.3d 784, 797-98 (7th Cir. 2000).
Accordingly, we will use the term “forfeiture.”
We note, however, that Federal Rule of Criminal Procedure
12(e) technically says that a party “waives” joinder and sever-
ance arguments by failing to raise them in a pretrial motion.
But that is an odd sort of “waiver,” for, unlike true waiver,
a “waiver” under Rule 12(e) is excusable for “good cause.”
Compare Olano, 507 U.S. at 733-34, with Fed. R. Crim. P. 12(e). In
other words, a Rule 12(e) waiver actually functions more like
a forfeiture. The Criminal Rules Advisory Committee has
also flagged this issue as “a source of considerable confu-
sion.” Criminal Rules Advisory Committee, May 2011
Report to Standing Committee, Agenda Action Item—Rule
12, at 3 available at http://www.uscourts.gov/uscourts/
(continued...)
6 No. 12-2118
review his arguments for plain error, or, in the alterna-
tive, to hold that his trial counsel was unconstitutionally
ineffective for failing to raise the arguments. To
succeed under plain error review, Berg must show that
(1) there was an error; (2) the error was plain; and, (3) the
error affected his substantial rights. See United States v.
Doyle, 693 F.3d 769, 771 (7th Cir. 2012). Alternatively, to
show that his counsel was ineffective, Berg must demon-
strate that (1) his counsel was objectively unreasonable
for not moving to sever the charges; and, (2) Berg was
prejudiced as a result. See Strickland v. Washington, 466
U.S. 668, 687 (1984).
1. Joinder
Federal Rule of Criminal Procedure 8(a) provides that
multiple offenses may be joined “if the offenses charged—
whether felonies or misdemeanors or both—are of the
same or similar character, or are based on the same act
or transaction, or are connected with or constitute parts
of a common scheme or plan.” We interpret this rule
broadly and “allow liberal joinder in order to enhance
judicial efficiency.” United States v. Nettles, 476 F.3d 508,
516 (7th Cir. 2007). “Further, in assessing whether
joinder was proper, we look solely to the face of the
indictment and not to the evidence adduced later at
1
(...continued)
RulesAndPolicies/rules/Reports/CR05-2011.pdf (last visited
Apr. 3, 2013).
No. 12-2118 7
trial.” United States v. Lanas, 324 F.3d 894, 899 (7th
Cir. 2003).
Here, the government argues that the two sets of
offenses—three of which related to marijuana traf-
ficking and three of which related to cocaine traffick-
ing—were properly joined because they were “of the
same or similar character.” (Appellee’s Br. at 22.) We
agree. The “same or similar character” requirement is
a “clear directive to compare the offenses charged for
categorical, not evidentiary, similarities.” United States v.
Alexander, 135 F.3d 470, 476 (7th Cir. 1998); accord
United States v. Jackson, 208 F.3d 633, 638 (7th Cir.
2000). Here, Counts 1-3 of the indictment all related to
a scheme to distribute marijuana, and Counts 4-6 all
related to a scheme to distribute cocaine. We think that
these charges—all of which involved drug deal-
ing—were of the same general category of offense and
therefore were “of the same or similar character” to each
other. See Windom, 19 F.3d at 1196 (possession of heroin
with intent to distribute and possession of cocaine with
intent to distribute are offenses of “same or similar char-
acter”); cf. United States v. Janus Indus., 48 F.3d 1548,
1557 (10th Cir. 1995) (manufacturing marijuana and
distributing drug paraphernalia are of “same or similar
character” because both violate the Drug Abuse
Prevention and Control Act); United States v. Fortenberry,
919 F.2d 923, 926 (5th Cir. 1990) (opinion denying
petition for rehearing) (transportation of an undeclared
firearm on a commercial airliner and possession of an
unregistered firearm are of “same or similar character”
because they are both weapons violations).
8 No. 12-2118
Berg counters that his two sets of offenses were not of
a similar character because (1) they involved different
types of drugs; (2) they happened too far apart in time;
(3) they involved some non-overlapping evidence; and,
(4) one set of offenses involved firearms and the other
did not. But Rule 8(a) does not require that joined
offenses be “temporally or evidentially related”; all it
requires is that they be “of like class.” Alexander, 135
F.3d at 476; see also United States v. Gooch, 665 F.3d 1318,
1335 (D.C. Cir. 2012) (“Rule 8(a) permits the joinder of
offenses of the same or similar character, even if they
are entirely unrelated to each other” as a factual mat-
ter) (internal quotation marks omitted). Here, the fact
that both crimes involved drug dealing suffices to
make them of like class.
As for the factual differences between the marijuana
charges and the cocaine charges, those differences
inform whether the charges should have been severed
because of undue prejudice (a question we will turn to
in a moment). But they do not mean the charges were not
of the same or similar character. Thus, Berg’s marijuana
and cocaine trafficking offenses were properly joined.
And, because it was not error for the cases to be joined,
there was not plain error either, and Berg’s attorney
was not ineffective for failing to object to the joinder.
See United States v. Persfull, 660 F.3d 286, 296 (7th Cir.
2011) (where there was no error, neither an ineffective
assistance claim nor a plain error claim will lie).
No. 12-2118 9
2. Severance
That brings us to our next question: whether, despite
being properly joined, the offenses should have been
severed to avoid undue prejudice. Federal Rule of
Criminal Procedure 14(a) provides that, if the joinder
of offenses “appears to prejudice a defendant or the
government,” the court may “order separate trials of
counts” or “provide any other relief that justice requires.”
That “prejudice” can take many forms, but “whatever
the source of the purported prejudice, the defendant
bears a heavy burden on appeal when arguing that the
prejudice warranted severance.” United States v. Ervin,
540 F.3d 623, 629 (7th Cir. 2008). Thus, it is not enough
merely to show that separate trials might have provided
the defendant a better shot at acquittal. Id. “Instead, the
defendant must establish that the denial of severance
actually prejudiced him by preventing the jury from
arriving at a reliable judgment as to guilt or innocence.” Id.Berg claims that, “if the counts had been severed, [he]
may very well have chosen a trial strategy that did not
include his taking the stand, and his alleged confession
to cocaine distribution would not have been admissible
in a guns for marijuana trial, and vice versa.” (Appellant’s
Br. at 21.) But this claim alone does not entitle him to
reversal of his conviction. True, joinder can be prejudicial
if it improperly coerces a defendant into testifying about
a count on which he wishes to remain silent. See Ervin,
540 F.3d at 628. But a defendant’s “general assertions
about the testimony he seeks to offer will not suffice” to
win on appeal; “he must proffer specific examples of
10 No. 12-2118
the exculpatory testimony that he would give but for
the joinder of the counts.” Id. at 629 (internal quotation
marks omitted); see also Nettles, 476 F.3d at 516-17 (defen-
dant must make “a convincing showing that he has both
important testimony to give concerning one count and
strong need to refrain from testifying on the other”).
Berg has not done so here. Indeed, he claims that it is
“impossible to know whether Mr. Berg would have
remained silent or made the decision to testify in either,
or both trials,” had the trials been severed. (Appellant’s
Br. at 22.) That “general assertion” is not enough to
carry his burden. Ervin, 540 F.3d at 629.
Berg also claims that the lack of severance prejudiced
him because it may have led the jury to decide the case
based on improper evidence. Once again, we are not
convinced. To be sure, trying multiple charges at the
same time can sometimes be problematic; it runs the risk
of producing a verdict based on bad acts and propensity
evidence rather than on admissible evidence. See id. at
628. But severance is not always the best solution to
that problem. Jury instructions can mitigate potential
prejudice from trying multiple charges together, see
Nettles, 476 F.3d at 516, and here, the jury was instructed
to consider all of the counts separately, (R. 52 at 16).
Moreover, the evidence against Berg was compelling on
all counts. Berg twice confessed to dealing Canadian
marijuana: once on June 23, 2010, and again in greater
detail on July 16, 2010, when he admitted that he got
his marijuana by swapping it for illegal guns. Canadian
authorities later recovered firearms linked to Berg.
Berg was recorded discussing illegal firearms deals on
No. 12-2118 11
multiple occasions, and his dealers, the Elizondos, testified
against him. As for the cocaine charges, the evidence
against him included his June 23 confession and the
testimony of LaRock, the undercover informant. Audio
and video surveillance showed multiple instances of
Peynetsa placing orders for cocaine, Berg meeting
with Peynetsa, and Peynetsa delivering cocaine to
LaRock, all in quick succession. Given this compelling
evidence and the jury’s instructions to consider the
counts separately, we cannot say that any plain error
occurred here.
For the same reason, Berg also cannot show that his
counsel was ineffective for failing to move for severance.
Under Strickland v. Washington’s familiar, two-pronged
test for ineffective assistance of counsel, Berg must demon-
strate that (1) his counsel’s performance was deficient;
and, (2) that deficiency resulted in prejudice. 466 U.S.
at 687. Here, that means Berg must show that, had his
counsel successfully moved for severance, there was
a “reasonable probability” that he would have been
acquitted. Rastafari v. Anderson, 278 F.3d 673, 689 (7th
Cir. 2002). Berg cannot make this showing. As discussed,
the evidence against Berg was overwhelming. As a
result, he cannot satisfy Strickland’s second prong, and
he therefore cannot show that his counsel was ineffec-
tive for failing to move for severance.
B. Failure to Examine Peynetsa
Berg next claims that the district court should have
directly questioned Peynetsa to determine whether he
12 No. 12-2118
would testify for Berg’s defense. To understand this
claim, some further background is in order.
After his arrest, Peynetsa confessed to police and impli-
cated Berg in dealing cocaine. Later, Peynetsa submitted
an affidavit claiming that Berg had nothing to do with
cocaine trafficking and that Berg only met with Peynetsa
to talk about buying marijuana for Berg’s personal use.
Berg placed Peynetsa on his witness list, and the gov-
ernment announced its intention to impeach Peynetsa
with his prior confession if Peynetsa testified. During
the trial, however, Berg’s counsel stated that “we have
elected not to call Mr. Peynetsa in the defense case in
chief.” (Trial. Tr. Vol. II at 425.) He then explained as
follows:
[Defense counsel]: I think we had a meeting
this morning in chambers where we discussed the
fact that Attorney Raj Sing had had contact with
Mr. Peynetsa and had been—I do not know if we
need to make this—we will just make it part of
the record based on our comments here I think is
fine. That Mr. Sing did indicate that he had had
an opportunity to speak with client and that he
was advising Mr. Peynetsa to invoke his fifth
amendment rights if called to the stand.2 In my
opinion that basically rendered him likely to be
unavailable and if that is the case, then we also
2
By the time Berg’s trial began, Peynetsa had already been
convicted on a state law cocaine distribution charge but was
still awaiting sentencing.
No. 12-2118 13
understand the government cannot use any of
his written statements as co-conspirator state-
ments because he would not be subject to
cross-examination. So given the fact that
Mr. Peynetsa was basically useless to both sides
at that point, we have now elected simply not
to call him.
THE COURT: I understand he had given
post-arrest interviews where he implicated your
client and—
[Defense counsel]: Yes.
THE COURT:—those are also not admissible.
[Defense counsel]: Correct.
THE COURT: All right.
[Defense counsel]: The government has not offered
any of them.
THE COURT: No, and without him testifying there
would be no basis. [Prosecutor], do you have
anything to add?
[Prosecutor]: No, Your Honor.
THE COURT: This is one of those decisions that
sounds strategic but I take it you have discussed it
with your client since you have been having—
[Defense counsel]: Yes.
THE COURT:—it seems multiple discussions with
your client. He is an active client—
[Defense counsel]: Yes.
14 No. 12-2118
THE COURT:—it appears from the court’s
vantage point.
[Defense counsel]: Sure.
THE COURT: All right. Good.
(Id. at 425-27) (footnote added).
In proceedings on Berg’s post-trial motion, Berg
argued that his attorney was ineffective for failing to
call Peynetsa into court to state whether he actually
wanted to invoke his Fifth Amendment rights.3 Berg
also requested a post-trial evidentiary hearing to allow
Peynetsa to testify about his intentions. The district
court held that Berg’s attorney made a reasonable
strategic decision not to call Peynetsa and denied Berg’s
post-trial motion.
Berg does not renew his ineffective assistance claim
here. Because Peynetsa’s testimony is not in the record,
Berg argues that there is not enough evidence to tell
whether his attorney was ineffective. Instead, Berg ar-
gues that the district judge violated Berg’s Sixth Amend-
ment right to compulsory process by failing—both
during trial and during post-conviction proceedings—to
determine independently whether Peynetsa wanted to
testify. Questioning Peynetsa during trial, Berg argues,
would have allowed the district judge to determine
whether Peynetsa actually would have invoked his
3
Because Peynetsa was represented by counsel, Berg’s attorney,
as a general matter, could not have spoken to him outside of
the courtroom, at least not ethically. See E.D. Wis. Gen.
L.R. 83(d)(1); Wis. R. Prof. Conduct 4.2.
No. 12-2118 15
Fifth Amendment rights. And questioning Peynetsa
after trial, Berg continues, would have allowed Berg to
support his ineffective assistance claim.
We disagree. Berg waived his right to call Peynetsa
at trial, and, as we will explain, that waiver extinguished
any Sixth Amendment claim Berg might have had. Berg
cannot overcome that waiver, and, in any event, his
underlying ineffective assistance claim is meritless. Ac-
cordingly, the trial court’s failures to question Peynetsa—
either during or after trial—do not entitle Berg to
reversal of his conviction.
1. Failure to question Peynetsa during trial
We will start with Berg’s argument that the district
judge should have independently questioned Peynetsa
during trial. As we have already discussed, see supra
at n.1, the Supreme Court has distinguished between
“forfeiture” and “waiver”; “forfeiture is the failure to
make the timely assertion of a right,” while “waiver is the
intentional relinquishment or abandonment of a known
right.” See Olano, 507 U.S. at 733 (internal quotation
marks omitted); accord Tichenor, 683 F.3d at 363. A for-
feited error may still be reviewed on appeal, albeit under
the more deferential “plain error” standard. Olano, 507
U.S. at 732. “When an issue is waived,” however, “we
cannot review it at all because a valid waiver leaves no
error for us to correct on appeal.” Tichenor, 683 F.3d at 363
(internal quotation marks omitted). Here, Berg, acting
through counsel, clearly abandoned his right to call
Peynetsa at trial. Accordingly, Berg waived any Sixth
16 No. 12-2118
Amendment claim on this basis, and we cannot consider
it on appeal.
Berg also suggests, without citation, that the district
judge had an independent duty to determine whether
Berg agreed with his lawyer’s decision not to call
Peynetsa. (See Appellant’s Br. at 29.) At the outset, Berg
forfeited this argument by failing to make it in the
district court. See United States v. Taylor, 471 F.3d 832, 841
(7th Cir. 2006). But in any event, the argument has no
merit. “The adversary process could not function effec-
tively if every tactical decision required client approval.”
Taylor v. Illinois, 484 U.S. 400, 418 (1988). Thus, “[p]utting
to one side the exceptional cases in which counsel is
ineffective, the client must accept the consequences of
the lawyer’s decision . . . to decide not to put certain
witnesses on the stand.” Id.; accord Gonzalez v.
United States, 553 U.S. 242, 249-50 (2008).
That brings us to the core issue: whether Berg’s
attorney was ineffective for declining to call Peynetsa
at trial. While Berg raised this argument in post-trial
proceedings, he now argues that there is not enough
information in the record to determine his attorney’s
effectiveness. (Appellant’s Br. at 30.) If Berg is correct,
that suggests we should leave the question for collateral
review under 28 U.S.C. § 2255, which would allow for
additional fact-finding. The government, on the other
hand, argues that there is already enough evidence in
the record to conclude, as a matter of law, that Berg’s
trial counsel was not unconstitutionally ineffective.
We usually leave ineffective assistance of counsel
claims for collateral review. See United States v. Best, 426
No. 12-2118 17
F.3d 937, 944 (7th Cir. 2005). That said, we will address
such claims on direct review if they do not involve ex-
trinsic evidence and “can be fully evaluated only on the
record below.” Id. And, because Berg cannot possibly
show that his lawyer’s performance was deficient on
this record, we think this is one such case.
As discussed, proving ineffective assistance of counsel
requires Berg to show that (1) his counsel’s performance
was deficient; and, (2) that deficiency resulted in preju-
dice. See Strickland, 466 U.S. at 687. To demonstrate that
his lawyer’s performance was deficient, Berg must
show that his lawyer’s work “fell below an objective
standard of reasonableness.” Id. at 688. “It is all too tempt-
ing for a defendant to second-guess counsel’s assistance
after conviction or adverse sentence, and it is all too
easy for a court, examining counsel’s defense after it
has proved unsuccessful, to conclude that a particular
act or omission of counsel was unreasonable.” Id. at 689.
As a result, review of counsel’s actions is “highly defer-
ential,” and we must “indulge a strong presump-
tion that counsel’s conduct falls within the wide range
of reasonable professional assistance.” Id.Berg’s attorney reasonably declined to call Peynetsa
here. “The Constitution does not oblige counsel to
present each and every witness that is suggested to
him.” Best, 426 F.3d at 945. Instead, it simply obliges
counsel to investigate the various lines of defense
available in a given case. See Wiggins v. Smith, 539 U.S.
510, 521-23 (2003). “If counsel has investigated wit-
nesses and consciously decided not to call them, the
18 No. 12-2118
decision is probably strategic.” Best, 426 F.3d at 945. As
a result, counsel’s decision “to call or not to call a wit-
ness” is “generally not subject to review.” Id.
There can be no doubt that Berg’s counsel made a
strategic decision not to call Peynetsa—the trial judge
specifically observed that this was “one of those
decisions that sounds strategic,” and Berg’s trial counsel
agreed. (Trial Tr. Vol. II at 427.) Moreover, that strategic
decision was reasonable. As both defense counsel and
the trial judge noted, calling Peynetsa would have
allowed the government to introduce post-arrest inter-
views in which Peynetsa implicated Berg. (Id. at 426-27.)
A reasonable attorney could easily conclude that the
harm caused by these interviews would outweigh any
benefit from Peynetsa’s testimony. Accordingly, Berg
cannot show that his attorney performed deficiently.
Nor can he show prejudice. As we have already dis-
cussed at length, the evidence here weighed heavily
in favor of the government. Moreover, there is little
reason to think that Peynetsa’s testimony would have
tipped the scales back in Berg’s favor. Given Peynetsa’s
apparent intent to invoke his Fifth Amendment rights,
he might not have even testified if called. And even
if Peynetsa did testify, he was unlikely to be a strong
witness; the government could have impeached him
with his prior statements implicating Berg. In light of
these observations, we do not think that Berg can
satisfy either prong of Strickland.
No. 12-2118 19
2. Failure to question Peynetsa during post-trial proceedings
That brings us to our final issue. Berg, in his reply
brief in support of his motion for a new trial, asked for
an “evidentiary hearing relative to the issues of whether
Mr. Peynetsa would have testified.” 4 (R. 92 at 7.) Berg
never received one, and he argues that this, too, violated
his Sixth Amendment right to call witnesses in his defense.
The Sixth Amendment gives a defendant the right
to present witnesses in his defense. But that right “is not
unlimited” and must “accommodate other legitimate
interests in the criminal trial process.” United States v.
Scheffer, 523 U.S. 303, 308 (1998). We think that one such
legitimate interest is the need for litigants to present
their evidence at the proper time and in the proper way.
See Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (“the
accused, as is required of the State, must comply with
established rules of procedure and evidence” in exercising
his or her Sixth Amendment rights); Horton v. Litscher,
427 F.3d 498, 505 (7th Cir. 2005) (quoting Rock v. Arkansas,
4
While Berg asked for an evidentiary hearing in his reply brief
in support of his motion, (R. 92 at 7), he did not ask for an
evidentiary hearing in his initial motion for a new trial, (see R.
89 at 7) (requesting “a new trial . . . [to] determine whether
Mr. Peynetsa would testify”). Arguably then, Berg forfeited
his right to an evidentiary hearing. See Solis v. Current Dev.
Corp., 557 F.3d 772, 777 (7th Cir. 2009) (“The right to an eviden-
tiary hearing can be forfeited if the litigant fails to timely
raise the issue[.]”). But the government does not argue forfei-
ture, so we will address the issue on the merits.
20 No. 12-2118
483 U.S. 44, 56 (1987)) (reasonable restrictions on the
presentation of evidence “do not abridge an accused’s
right to present a defense so long as they are not ‘arbi-
trary’ or ‘disproportionate to the purposes they are de-
signed to serve’ ”). Berg could have tried to call
Peynetsa at trial. And, had the district court barred
him from doing so, Berg could have objected and pre-
served the issue for appeal. But he did not. Instead, he
affirmatively (and, as discussed, reasonably) waived
his right to call Peynetsa. In other words, Berg was not
denied the opportunity to call Peynetsa. Berg had the
opportunity to call Peynetsa; he just did not try to use
it until well after the time to do so had passed. We do
not think that the Sixth Amendment gives defendants a
right to affirmatively abandon an issue at trial and then
revive the issue after things have not gone their way.
That said, Federal Rule of Criminal Procedure 33(a)
provides that a district court “may vacate any judg-
ment and grant a new trial if the interest of justice
so requires.” Thus, a district court has the discretion to re-
examine issues not presented at trial, even if the Sixth
Amendment does not require it to do so. Accordingly, the
district court’s decision not to hold an evidentiary
hearing in this case is reviewable for abuse of discretion.
See United States v. Smith, 674 F.3d 722, 728 (7th Cir.
2012) (“We review the denial of a motion for a new
trial under Rule 33 for an abuse of discretion.”); United
States v. Cornelius, 623 F.3d 486, 496 (7th Cir. 2010)
(“We review the district court’s decision not to grant
an evidentiary hearing for abuse of discretion.”).
No. 12-2118 21
We do not think the district court abused its discre-
tion here. As discussed, Berg’s ineffective assistance
claim cannot succeed because his attorney made a
strategic choice not to call Peynetsa. As a result, an evi-
dentiary hearing was unnecessary to resolve the claim,
and the district court did not abuse its discretion by
declining to hold one.
III. C ONCLUSION
We A FFIRM Berg’s conviction.
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