United States v. Guy Westmoreland , 712 F.3d 1066 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3961
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
G UY J. W ESTMORELAND,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:98-cr-30022-WDS-2—William D. Stiehl, Judge.
A RGUED O CTOBER 12, 2012—D ECIDED M ARCH 25, 2013
Before K ANNE, T INDER, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. Over a decade ago, defendant
Guy Westmoreland was convicted in two trials, in the
first for conspiracy to distribute a controlled substance,
and in the second for five additional counts stemming
from the murder of the wife of his partner in drug-
dealing: causing the death of a person through the use
of a firearm during a drug trafficking crime; using inter-
state commerce facilities to commit murder for hire;
2 No. 10-3961
conspiring to commit murder for hire; tampering with
a witness by committing murder; and causing the death
of a witness through use of a firearm. His convictions
were affirmed on appeal. See United States v. Westmoreland,
240 F.3d 618 (7th Cir. 2001) (“Westmoreland I”) (drug
conspiracy conviction); United States v. Westmoreland, 312
F.3d 302 (7th Cir. 2002) (“Westmoreland II”) (murder-related
convictions).
After he was convicted in the murder case, and
while his appeal from those convictions was pending in
Westmoreland II, Westmoreland filed a motion for new
trial under Federal Rule of Criminal Procedure 33.
The motion argued that the government’s supposedly
outrageous conduct violated his right to due process of
law and that a new trial on his murder convictions
was warranted because of newly discovered evidence.
He filed his motion on October 4, 2002. Other than
granting the government an extension of time for its
response, the district court took no action on West-
moreland’s motion for several years. In the meantime,
Westmoreland requested the appointment of counsel
and complained to the district court about the delay.
The district court ultimately denied his motion on
December 13, 2010, more than eight years after it was
filed. United States v. Westmoreland, 2010 WL 5141770(S.D. Ill. Dec. 13, 2010). Westmoreland appeals.
We review the denial of a motion for a new trial for
an abuse of discretion. United States v. Boender, 649 F.3d
650, 654 (7th Cir. 2011). “The district court abuses its
discretion when it makes an error of law or when it
No. 10-3961 3
makes a clearly erroneous finding of fact.” United States
v. Freeman, 650 F.3d 673, 678-79 (7th Cir. 2011).
Westmoreland also argues that the district court’s delay
and its refusal to appoint counsel violated his Sixth
Amendment rights, and we review those claims de novo.
United States v. Foster, 701 F.3d. 1142, 1150 (7th Cir.
2012) (“We ‘review de novo a district court ruling that
affects a defendant’s Sixth Amendment rights.’ ”),
quoting United States v. Nettles, 476 F.3d 508, 517 (7th
Cir. 2007). Though we are troubled, to say the least, by
the district court’s unexplained eight-year delay in
ruling, Westmoreland’s arguments on the merits do not
warrant overturning his convictions or ordering a new
trial. The district court did not abuse its discretion
in denying a new trial, and it correctly found that his
constitutional rights were not violated. We affirm.
I. Factual and Procedural Background
A brief background of Westmoreland and his crimes
will serve to frame this case. Additional chilling details
are available in Westmoreland I and II. In 1997 and 1998,
Westmoreland and Richard Abeln were partners in a
drug distribution operation. Using Abeln’s airplane, the
pair imported nine kilograms of cocaine and about
ninety pounds of marijuana from Texas to a small airport
in Illinois. In late 1997, Abeln wanted to end his mar-
riage but did not want to split his assets with his wife
through a divorce. Instead, he decided to have her
killed. Westmoreland had previously mentioned to
Abeln that he could have someone killed for $1,000.
4 No. 10-3961
Based on that comment, Abeln asked Westmoreland
about the possibility of killing his wife. Initially,
Westmoreland declined. Then, to persuade him to
take the job, Abeln told Westmoreland (falsely) that
his wife had discovered their drug trafficking business
and was going to inform law enforcement. Westmore-
land changed his mind and began making arrangements.
Westmoreland recruited Deandre Lewis to commit
the murder. Abeln and Westmoreland agreed that the
murder would occur on December 27, 1997, at a local
airport and that it would be staged as a robbery gone
bad. Lewis drove to the scene in a pick-up truck pro-
vided by Westmoreland. Abeln drove his wife to the
location in the family car. The couple’s twelve-year-old
son was also in the car. While the Abeln family was
there, Lewis approached their car and demanded
Mrs. Abeln’s jewelry. He pulled her from the car and
shot her with two rounds from a double-barreled shot-
gun. She died at the scene.
At the time of the murder, Westmoreland was on vaca-
tion with his family in Florida to establish an alibi.
When he returned, however, he helped Lewis dispose
of Mrs. Abeln’s jewelry. He also remained in regular
contact with Abeln as the investigation began, advising
Abeln about how to mislead the police. In spite of
those efforts, the “robbery gone bad” scenario fell apart
quickly under police scrutiny. The investigation soon
led to Westmoreland. He was arrested on January 6,
1998. He was convicted on August 20, 1998 of the drug
conspiracy and on June 28, 2001 of crimes related to the
No. 10-3961 5
murder. The district court sentenced Westmoreland to
240 months on the drug conspiracy charge and life im-
prisonment on the murder-related charges, to be
served concurrently.
II. Due Process
Westmoreland’s opening argument in this appeal is
that certain conduct by the government was so out-
rageous that his convictions should be vacated and
the charges against him dismissed on due process
grounds. Though the facts presented are certainly
unusual, his legal argument is not persuasive. After
Westmoreland was convicted of the drug charge in
Westmoreland I, but before he was tried for the murder
charges in Westmoreland II, the government learned
that one of the lead investigating agents, an Illinois
State Police agent named Martin Milkovich, had
engaged in a sexual affair with Westmoreland’s wife,
Bronnie. Initial indications were that the affair began
while the case against Westmoreland was building and
lasted several months. Upon discovering the affair, the
federal government dropped its efforts to seek the
death penalty against Westmoreland and Lewis. The
government did not call Milkovich as a witness in
Westmoreland’s second trial, though Bronnie West-
moreland did testify. When questioned about the
affair with Milkovich, she testified that the affair
lasted from November 1999 until April 2000.
There is no question that the affair tainted Milkovich.
In a separate investigation, the Illinois State Police inter-
6 No. 10-3961
viewed Assistant United States Attorney Kit Morrissey,
one of the government’s lead prosecutors, concerning
the affair. Morrissey said that it would have been “im-
portant” for him to know that Milkovich had estab-
lished a sexual relationship with Bronnie:
because of the obvious damage to the case that
that could cause. That would have been something
we would have had to disclose, which we did when
we did find out about it. And it would also have
been — obviously, it would have told me that neither
of them can be trusted, and that — I mean, it would
affect my case in every aspect.
Until the affair was discovered, Morrissey explained,
Milkovich had been an important government witness
who was “central to the investigation.” The Illinois
State Police ultimately issued a formal complaint against
Milkovich and his employment was terminated.
Westmoreland argues that Milkovich’s affair with
Bronnie Westmoreland was so outrageous that it
infected the entire government investigation and pros-
ecution, denying him due process of law. The argument
is based on a dictum in United States v. Russell, 411 U.S.
423, 431-32 (1973), in which the Supreme Court rejected
an entrapment defense in an early methamphetamine
case. Writing for the Court, then-Justice Rehnquist specu-
lated that the Court “may some day be presented”
with conduct by government agents so outrageous that it
should bar the government from prosecuting at all. In
Russell itself, a government agent had provided one
ingredient for the drug that was difficult but not impos-
No. 10-3961 7
sible to obtain. That was not so outrageous as to bar
the prosecution, and the Supreme Court has not found
such a bar in any other cases it has decided.
Russell offers no real guidance to lower courts as to
the type or level of conduct by the government that
might, standing alone, amount to a due process viola-
tion, though the dictum has been the focus of argu-
ments by a number of defendants in the lower federal
courts. Without such guidance from the Supreme
Court, our court has disallowed such a defense in this
circuit. See United States v. Stallworth, 656 F.3d 721, 730 (7th
Cir. 2011), citing United States v. White, 519 F.3d 342, 346
(7th Cir. 2008); United States v. Garcia, 89 F.3d 362,
367 (7th Cir. 1996); United States v. Boyd, 55 F.3d 239, 241
(7th Cir. 1995).
Westmoreland points out that other circuits have rec-
ognized the outrageous conduct defense, though out-
right reversals on the defense are extremely rare. These
few cases make clear that even if we were inclined to
reexamine our precedent rejecting the defense, this case
would not support the defense. Where it has been recog-
nized, the defense has come into play only where the
government’s involvement created a crime or criminal
enterprise that did not exist before, and where the gov-
ernment had to coerce the defendant to commit the
crime by some unreasonable means. For example, in
United States v. Solorio, 37 F.3d 454, 460-61 (9th Cir. 1994),
the Ninth Circuit initially reversed a defendant’s drug
conviction on an outrageous conduct theory because
the court believed that the amount the government paid
8 No. 10-3961
to an informant had depended on the defendant’s
eventual conviction and the quantity of drugs involved.
The panel later withdrew that opinion. 53 F.3d 341 (9th
Cir. 1995). See also, e.g., United States v. Mosley, 965 F.2d
906, 908-09, 914 (10th Cir. 1992) (agent posing as drug
dealer enticed defendant to buy quantity of cocaine;
court found that although government’s zeal was exces-
sive, conduct was not sufficiently outrageous to find
due process violation); United States v. Twigg, 588 F.2d
373, 380-81 (3d Cir. 1978) (outrageous conduct barred
defendants’ drug prosecution where government,
through confidential informant, set up a methamphet-
amine lab and supplied equipment and ingredients).
This case is quite different from those. Westmoreland
conspired to murder Mrs. Abeln without any coercion,
assistance, or involvement by the government. The
murder happened long before Milkovich met Bronnie
Westmoreland. Even if we assume that the affair tainted
Milkovich’s investigation, the affair did not play any
role in the crime itself. If the outrageous conduct de-
fense were available at all, therefore, the affair would
not satisfy the basic factual requirement for it to ap-
ply. Milkovich’s relationship with Westmoreland’s
wife, although a serious lapse of Milkovich’s profes-
sional judgment, was not an outrageous violation of
Westmoreland’s due process rights and does not war-
rant reversal. The district court did not err on this ground.
III. Newly Discovered Evidence
Westmoreland next argues that he should have a new
trial on the basis of newly discovered evidence. Federal
No. 10-3961 9
Rule of Criminal Procedure 33(a) permits a district court
to vacate any judgment and grant a new trial “if the
interest of justice so requires.” To show that the interest
of justice requires a new trial, a defendant must
provide evidence that (1) came to his knowledge only
after trial; (2) could not have been discovered sooner
through the exercise of 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. See
United States v. Hagler, 700 F.3d 1091, 1101 (7th Cir. 2012),
citing United States v. McGee, 408 F.3d 966, 979 (7th
Cir. 2005); United States v. Reyes, 542 F.3d 588, 595 (7th Cir.
2008). We “approach such motions with great caution
and are wary of second-guessing the determinations of
both judge and jury.” McGee, 408 F.3d at 979, quoting
United States v. DePriest, 6 F.3d 1201, 1216 (7th Cir. 1993).
Westmoreland presents two categories of “newly dis-
covered” evidence. We address each in turn.
A. Timing of the Affair
With his motion for a new trial, Westmoreland presented
affidavits of three witnesses who stated that the affair
between Milkovich and Bronnie Westmoreland began
during Milkovich’s investigation — not after the investi-
gation had concluded, as Bronnie testified at trial.
Amy Wade, Greg Schmidt, and Tina Kuehl all swore
that they had witnessed encounters between Milkovich
and Bronnie in 1998. Amy Wade stated that in May 1998,
she and Bronnie went dancing all night with Milkovich.
Greg Schmidt, a neighbor, testified that in August 1998,
10 No. 10-3961
he saw Milkovich visit Bronnie on several occasions,
staying for several hours, sometimes overnight, with
Milkovich sometimes leaving with different clothes than
he had worn when he arrived. On one occasion Schmidt
saw Bronnie and Milkovich kiss. The third affiant, Tina
Kuehl, is Westmoreland’s sister. She stated that in
March 1998, she went into Bronnie’s home and saw
Milkovich and Bronnie leaving Bronnie’s bedroom as
Milkovich was tucking in his shirt.
Kuehl’s testimony was not “new” — she submitted an
affidavit in 2001, before the murder trial — but the trial
court doubted Kuehl’s credibility because of her rela-
tionship to Westmoreland and because Kuehl had
assisted Bronnie in destroying evidence.1 Westmoreland
concedes that Kuehl’s evidence is not new, but he
argues that Wade’s and Schmidt’s evidence is new. He
argues that the district court’s negative assessment of
Kuehl’s credibility was the reason he did not anticipate
or discover earlier that other witnesses could cor-
roborate Kuehl’s testimony, and it was only after trial,
when Wade and Schmidt came forward, that Kuehl’s
statement had any force. Westmoreland concludes that
if this corroborating evidence had come to light earlier, it
1
Before trial, on May 18, 2001, Westmoreland submitted a
document to the district court captioned “Ex Parte Supple-
mental Response To Government’s Motion In Limine
Regarding Milkovich/Bronnie Westmoreland Relationship.”
In it, he asserted that he had a witness, presumably Kuehl,
with information that Milkovich and Bronnie were together
as early as February or March 1998.
No. 10-3961 11
likely would have led to his acquittal because it would
have suggested to the jury that Milkovich’s part of the
murder investigation had been corrupted by the affair.
Westmoreland’s argument shows one of its fatal
flaws. For the court to treat the Wade and Schmidt af-
fidavits as new evidence, Westmoreland must dem-
onstrate that they could not have been discovered
sooner through the exercise of due diligence. Before his
trial began, Westmoreland knew of the facts underlying
the affidavits. He knew of the affair, and he believed
that it had begun earlier than the government and
Bronnie said it did. Though he may have thought at
the time that it was not worthwhile to pursue other
witnesses who could corroborate his sister, he does not
argue that he could not have discovered such witnesses
sooner, only that he chose not to try. That is not due
diligence. See United States v. Theodosopoulos, 48 F.3d
1438, 1449 (7th Cir. 1995) (witness’s post-trial affidavit
was not “newly discovered” where defendant failed
to exercise due diligence; defendant took no steps to
secure witness’s testimony but instead sought a missing
witness instruction); United States v. McGaughey, 977
F.2d 1067, 1075 (7th Cir. 1992) (failure to conduct exhaus-
tive search for document showed lack of necessary
due diligence). This was not newly discovered evidence
warranting a new trial.
Westmoreland also fails to show that he likely
would have been acquitted if the jury had heard that
Milkovich’s affair overlapped with his investigation.
There is no doubt that Milkovich’s behavior tainted the
12 No. 10-3961
government’s case, and the longer the affair, the more
extensive we can assume the taint would have been.
We are not persuaded, though, that evidence of a
longer affair would have led to acquittal. The jury
that convicted Westmoreland of Mrs. Abeln’s murder
learned that Milkovich and Bronnie had had an affair.
Westmoreland has not identified any particular evi-
dence against him that should be deemed less credible
or probative if the affair began back in the spring of
1998, which would still have been several months after
Mrs. Abeln’s murder. It is highly doubtful that the out-
come of the murder trial would have been any different
if the jury had heard evidence — evidence that was
disputed by the government — that the affair had begun
while Milkovich was still investigating the case. In sum,
the Wade and Schmidt affidavits also are not “newly
discovered evidence” that would warrant a new trial.2
B. Milkovich’s Recantation
Throughout the government’s investigation and pros-
ecution, Milkovich stated that when Westmoreland was
2
Westmoreland also argues that the district court erred by
rejecting the Wade and Schmidt affidavits because they lacked
“any foundation as to how the affiants may have been able to
identify the individual allegedly involved with Bronnie as
Milkovich.” Westmoreland, 2010 WL 5141770, at *4. Without
such a showing, the district court found that the affidavits
would have been inadmissible. Given our resolution of the
question of whether the affidavits warrant a new trial, their
admissibility is moot.
No. 10-3961 13
arrested, he said he did not know anything about a
“murder-for-hire” scheme. The evidence was important
because no one had said anything to Westmoreland at
that point about a murder. See Dkt. 904 Ex. D (Milkovich
Jan. 6, 1998 investigative report) (“WESTMORELAND
told agents he didn’t know anything about any murder,
especially a murder for hire, but did admit to selling
drugs for RICHARD ABELN.”); Dkt. 904 Ex. F (Milkovich
grand jury testimony). Milkovich repeated this testimony
in Westmoreland I, Dkt. 904 Ex. H (Milkovich trial testi-
mony), but Milkovich did not testify in Westmoreland II.
Westmoreland argues in this appeal — which again,
is an appeal from the district court’s denial of his
motion for a new murder trial in Westmoreland II — that
Milkovich later recanted these statements and that
his recantation is new evidence warranting a new trial
on the murder charges. We disagree.3
3
The district court considered this evidence under the
standard used to consider the impact of recanted trial testi-
mony. Under that standard, the court must consider whether:
(1) it is reasonably well satisfied that testimony given by the
witness was false; (2) the jury might have reached a different
conclusion absent the false testimony or if it had known that
the testimony was false; and (3) the defendant was taken by
surprise and was unable to meet the false testimony or did
not know of its falsity until after trial. See United States v.
Taylor, 600 F.3d 863, 870 (7th Cir. 2010). Westmoreland argues
that the district court erred when it considered Milkovich’s
recantation under this standard. Milkovich did not testify in
Westmoreland II, so whatever Milkovich might have recanted
(continued...)
14 No. 10-3961
In support of his motion for a new trial, Westmoreland
presented the affidavits of his friend, Steve Korris,
and his sister, Renee Westmoreland. They stated that
they met with Milkovich on January 8, 2004, and that at
the meeting he recanted his earlier statements, telling
Korris and Renee Westmoreland that Westmoreland
made no statement to police whatsoever upon his
arrest and instead “lawyered up.” See Dkt. 904, Ex. B
(3/11/2004 Korris Affidavit) (Milkovich told Korris that
“Guy Westmoreland made no statement whatsoever to
police when arrested in connection with the murder of
Debra Abeln.”); id. at Ex. C (3/10/2004 R. Westmoreland
Affidavit) (“Marty said that on the morning of
Guy Westmoreland’s arrest, he or Kale Jackson, a FBI
agent, had NOT gotten any type of statement from
Guy Westmoreland, in fact he ‘lawyered up.’ They
couldn’t get him to talk to them at all.”).
Again, to satisfy the standard for newly discovered
evidence, Westmoreland must show that the evidence:
(1) was discovered after trial; (2) could not have been
discovered sooner with due diligence; (3) was material
and not simply impeaching or cumulative; and (4) if
presented at a new trial, would probably result in
3
(...continued)
was not trial testimony in that case. Westmoreland argues
that the district court should have considered the evidence
under the test for newly discovered evidence. The govern-
ment does not argue otherwise. We review the district court’s
decision under the test for newly discovered evidence, but
Westmoreland’s claim fails under either test.
No. 10-3961 15
Westmoreland’s acquittal. See Hagler, 700 F.3d at 1101.
The Korris and Renee Westmoreland affidavits fail
every prong of this test.
First, even if the evidence of what Milkovich said
might have been new, Westmoreland’s own statements
at the time of his arrest could not have been “newly
discovered” to Westmoreland. He was there and knew
what he said or did not say at the time. Second, the evi-
dence must be admissible to be material, and Milkovich’s
statements to Korris and Renee Westmoreland about
what Westmoreland said would be inadmissible hear-
say as proof of what Westmoreland said or did not say.
Third, even if admitted, the statements would have
served at most only to impeach the testimony of Master
Sergeant Calvin Dye of the Illinois State Police, who
did testify at Westmoreland’s murder trial. Sergeant Dye
was with Milkovich when Westmoreland was arrested,
and he testified consistently with Milkovich’s original
statement. Fourth, it is unlikely that this evidence, had
it been admitted, would have led to Westmoreland’s
acquittal. The case against Westmoreland was very
strong, and the new evidence was weak. By the time of the
murder trial, Milkovich’s credibility was non-existent,
and Dye’s testimony was directly contrary on the sub-
ject. We reject Westmoreland’s argument that the Korris
and Renee Westmoreland affidavits amount to newly
discovered evidence entitling him to a new trial.
IV. Sixth Amendment Claims
Westmoreland contends that his Sixth Amendment
rights were violated in two ways. First, he submits that
16 No. 10-3961
his right to a speedy trial was violated by the district
court’s excessive delay in ruling on his motion for a new
trial. Second, he argues that his right to counsel was
violated. As troubling as the long delay in deciding the
motion was, we find no reversible error on either ground.
A. Delayed Denial of Motion for New Trial
Westmoreland filed his motion for a new trial on
October 4, 2002. His direct appeal was pending, and his
motion was filed as a supplement to his appeal. He
was represented by counsel at the time, but he prepared
his motion for a new trial pro se. His lawyer filed
Westmoreland’s motion with the district court as a cour-
tesy and described his action in a cover letter: “Although
fashioned as an appellate brief, Mr. Westmoreland would
like the pleading to be treated as a motion for [a] new trial
based on newly discovered evidence, under Fed. R. Crim.
P. Rule 33.”
On January 22, 2003, the district court construed
Westmoreland’s October 4 papers as a Rule 33 new trial
motion and ordered the government to file a response
within 20 days. The court’s order noted that after the
court received the government’s response, it would
determine whether “an evidentiary hearing is required
for resolution of the motion.”
On February 4, 2003, Westmoreland filed a motion
for appointment of counsel and for a stay of the proceed-
ings. The next day, he moved to stay the proceedings
in the district court pending an interlocutory appeal re-
No. 10-3961 17
garding the district court judge’s refusal to recuse him-
self. Westmoreland’s request for a stay was granted
on February 18, but his appeal was dismissed the next day.
More than a year later, on April 26, 2004, Westmore-
land filed a “Supplement to Statement of Facts, in Light
of Additional Newly Discovered Facts.” On May 12,
2004, August 18, 2004, and September 22, 2004, the gov-
ernment filed requests for extensions of time to respond
to Westmoreland’s pending motions. The record does not
reflect whether the last of these requests was granted.
In the meantime, Westmoreland filed a motion for
sanctions against the government, arguing that its con-
tinued delays had prejudiced him. He argued that the
federal rules “are designed to promote justice and prevent
delay,” that “[a]ny further delay will be highly prejudicial
to Westmoreland,” and that he “has been and is being
severely prejudiced by the United States’ behavior in this
case and Rule 11 sanctions should be imposed on the
United States accordingly.”
The government ultimately filed its response to
Westmoreland’s new trial motion on September 29,
2004. Westmoreland filed his reply on December 1. On
December 7, 2004, Westmoreland supplemented his
pleadings with excerpts from the administrative
hearing transcripts related to the Illinois State Police
Department investigation into the Milkovich affair
with Bronnie Westmoreland.
By 2008, however, the district court had not ruled on
any of the pending motions. In February of that year,
Westmoreland filed a “Motion for Determination of
18 No. 10-3961
Status on Defendant’s Rule 33 Motion.” Still, nothing
happened. At long last, the district court denied
Westmoreland’s motion for a new trial and his motions
to appoint counsel on December 13, 2010 — more than
eight years after his original motion and six years after
the government’s response. The district court’s denial
addressed the substance of Westmoreland’s motions
but did not comment on or explain this extended delay.
Westmoreland argues that the district court’s delay in
ruling on his motion for a new trial violated the Sixth
Amendment’s promise of “the right to a speedy and public
trial.” Both the accused and society as a whole have an
interest in prompt resolution of criminal proceedings. See
Barker v. Wingo, 407 U.S. 514, 519-20 (1972). Faded memo-
ries and lost evidence may impair a defendant’s ability to
defend himself if too much time passes between the
accusation and the trial. See id. at 521. Delay may also
exacerbate a defendant’s anxiety and unnecessarily drain
a defendant’s financial resources. See Moore v. Arizona,
414 U.S. 25, 27 (1973).
Our cases, however, have not addressed whether
the right to a speedy trial attaches to a post-trial motion
for new trial. The Tenth Circuit, in United States v.
Yehling, 456 F.3d 1236, 1243 (10th Cir. 2006), reasoned
that because concerns calling for a speedy trial also
apply to motions for a new trial based on newly dis-
covered evidence, it would apply the speedy trial analy-
sis. In doing so, it held that a four-year delay in deny-
ing a motion for a new trial did not violate the
Sixth Amendment. We need not decide whether we
No. 10-3961 19
agree with the Tenth Circuit that the speedy trial right
attaches to a motion for a new trial. Even if we assume
that the right attached, Westmoreland cannot show
that such a right was violated.
A Sixth Amendment speedy trial claim turns on the
following general factors: “whether delay before trial
was uncommonly long, whether the government or the
criminal defendant is more to blame for that delay,
whether, in due course, the defendant asserted his right
to a speedy trial, and whether he suffered prejudice as
the delay’s result.” Doggett v. United States, 505 U.S. 647,
651 (1992); see also United States v. White, 443 F.3d 582,
589 (7th Cir. 2006). Although Westmoreland is able to
satisfy some of the factors with respect to his motion for
a new trial, he cannot show prejudice — which, because
he was convicted, must be “substantial” and “demonstra-
ble.” Yehling, 456 F.3d at 1245, quoting Perez v.
Sullivan, 793 F.2d 249, 256 (10th Cir. 1986). This claim
therefore fails.
The first factor, an uncommonly long delay, “is not so
much a factor as it is a threshold requirement.” United
States v. Loera, 565 F.3d 406, 412 (7th Cir. 2009). Delays
approaching one year are “presumptively prejudicial,”
White, 443 F.3d at 589-90, and the district court’s delay
here was uncommonly long. We recognize that district
courts face challenging caseloads and that some rea-
sonable delays are inevitable. In this case, however, the
district court failed to take any substantive action on
Westmoreland’s motion for eight years and has offered
no explanation for its delay. This delay was plainly ex-
20 No. 10-3961
cessive and, on this record, unexplained. We are unable
to discern a reason for it from the post-verdict docket
in this case, which does not appear to be unusually
busy or complex. We also cannot rely on the district
court’s explanation, for the court gave none. Without
more, though, even this unacceptably excessive delay
is not sufficient to establish prejudice and to require
that the murder convictions be set aside.
When we analyze the prejudice element of a constitu-
tional speedy trial claim, we ordinarily weigh three
interests: (1) preventing oppressive pretrial incarcera-
tion; (2) minimizing the anxiety and concern of the ac-
cused; and (3) limiting the possibility that the defense
will be impaired. See Barker, 407 U.S. at 532. When
Westmoreland filed his motion for a new trial he had
already been convicted of a successful conspiracy to
commit murder and had been sentenced to serve the rest
of his life in prison. When the district court finally re-
viewed his motion for new trial, it found that the
motion had no merit, a finding with which we agree.
Given this posture, we must reject Westmoreland’s
arguments. He argues that he was prejudiced by the
eight years that he suffered anxiety and worry while
waiting for resolution of his motion for new trial. But
Westmoreland’s motion for new trial did not challenge
his conviction and concurrent 240 month sentence for
the drug conspiracy. Thus, while he waited for a ruling
on his motion for new trial, he was not incarcerated
any longer than he would have been otherwise, and we
are not persuaded that any additional anxiety or worry
because of the district court’s delayed ruling requires
No. 10-3961 21
that he be exonerated for the murder. Once he was con-
victed and sentenced and his conviction and sentence
had been affirmed on appeal, his incarceration and any
resulting anxiety or worry resulted from his crimes,
not from delay in deciding his motion for a new trial.
Westmoreland also argues that he was prejudiced by
the delay because it became difficult to preserve docu-
mentary evidence and witness testimony over that time,
and that while he waited for his ruling, his co-defendant
(Abeln) committed suicide. Again, Westmoreland had
been convicted and his convictions affirmed. His trial
defense had not been impaired. Abeln’s later suicide
did not affect Westmoreland’s post-conviction proceed-
ings. Westmoreland does not suggest that if Abeln
had lived, he would have recanted his inculpatory
trial testimony or would have provided any other ex-
culpatory evidence. The arguments raised in the motion
for a new trial regarding new evidence lacked merit.
Westmoreland was not prejudiced by his inability to
preserve evidence to support a meritless motion. While
we do not condone the delay, without a showing of
prejudice the wait Westmoreland endured while his
motion for a new trial was pending could not have
amounted to a violation of his Sixth Amendment right
to a speedy trial warranting dismissal of the charges
on which he was convicted.
B. Right to Counsel
Finally, Westmoreland argues that he should receive
a new trial because his right to counsel was violated.
Westmoreland was represented by counsel in his direct
22 No. 10-3961
appeal. While that appeal was pending he filed his pro se
motion for a new trial. The document that was filed,
although filed with the district court as a new trial
motion and treated as such, was captioned to be filed
in this court as a “Pro Se Supplemental Brief” to
Westmoreland’s direct appeal.
The record reveals that Westmoreland wanted his
lawyer to present the arguments within his “Pro Se Sup-
plemental Brief” on direct appeal, but his lawyer re-
fused. Instead, his attorney submitted Westmoreland’s
motion to the district court, but did so only as a “courtesy”
to Westmoreland. See Dkt. 890 at i (Motion for New
Trial, styled as “Pro Se Supplemental Brief” to West-
moreland’s direct appeal) (“The issues presented herein
are based on newly discovered evidence that is worthy
of this Court’s attention and review. However, the De-
fendant/Appellant’s court appointed counsel . . . refuses
to present these issues to this Court for review.”);
Dkt. 899 Ex. A (counsel’s cover letter to court), Ex. B
(Westmoreland’s letter to counsel) (“I am requesting (as
I did in July) that you file a [motion for new trial] based
on the newly discovered evidence that I sent you in
July 2002. I am entitled to effective assistance of counsel
to present these claims upon newly discovered evidence
and therefore, I am asking you to take notice of this
constitutionally protected right consistent with current
7th Circuit precedent per Kitchen v. United States,
227 F.3d 1014 (7th Cir. 2000).”).
While his motion for a new trial was pending,
Westmoreland filed two motions for appointment of
counsel. He filed his first on February 4, 2003. He
No. 10-3961 23
renewed that motion on December 2, 2004, noting in
his filing that “[t]his case is getting more and more compli-
cated and difficult for Defendant to manage,” and
stating “[a]s this Court is aware, Defendant suffers
mental impairment [sic] and is relying solely
on ‘jail-house lawyers’ and family to proceed with the
investigation and manage the litigation. Defendant is
incompetent to do so alone.” The district court denied
these requests without comment when it denied West-
moreland’s motion for a new trial. See Westmoreland,
2010 WL 5141770, at *7. Westmoreland contends that
the district court’s denial violated his Sixth Amendment
right to counsel. He asserts that because he was denied
counsel for his new trial motion, he should be granted
a new trial. Although we agree that Westmoreland’s
right to counsel attached to his motion, we conclude
that the district court did not violate that right.
As Westmoreland noted in his letter to his lawyer,
this situation is similar to that presented in Kitchen v.
United States, 227 F.3d 1014 (7th Cir. 2000). Kitchen filed
a motion for new trial while his direct appeal was
pending, presenting evidence that he argued was newly
discovered. Unlike this case, though, Kitchen’s appeal
was stayed while his motion for new trial was decided.
When his new trial motion was denied, his counsel ne-
glected to file a notice of appeal from the denial, pre-
cluding appellate review. Kitchen then filed a motion
under 28 U.S.C. § 2255 arguing that he had been denied
his right to effective assistance of counsel when his
trial/appellate counsel failed to file a notice of appeal
from the denial of his motion for a new trial. Id. at 1017.
24 No. 10-3961
We faced the following questions: (1) whether Kitchen
had a right to counsel for his pre-appeal motion for a
new trial; (2) whether his counsel’s failure to file a notice
of appeal was deficient performance; and (3) whether
Kitchen was entitled to a presumption of prejudice or,
if not, whether he had shown prejudice. Id.
Addressing the first issue, we held that Kitchen had
a right to counsel for his pre-appeal motion for a new
trial. The Sixth Amendment right to counsel extends to
all “trial-like confrontations” connected to a criminal
prosecution. See United States v. Ash, 413 U.S. 300, 311-
12 (1973); Kitchen, 227 F.3d at 1018 (“[O]nce a de-
fendant’s right to counsel attaches, the right continues
to apply ‘at every stage of a criminal proceeding
where substantial rights of a criminal accused may be
affected.’ ”), quoting Mempa v. Rhay, 389 U.S. 128, 134
(1967). A criminal defendant has the right to counsel
through his first appeal of right, but once that appeal
has been decided, the right no longer applies. See
Kitchen, 227 F.3d at 1018, citing Pennsylvania v. Finley,
481 U.S. 551, 557 (1987); Evitts v. Lucey, 469 U.S. 387, 396
(1985); Ross v. Moffitt, 417 U.S. 600, 607 (1974). Because
Kitchen’s motion was filed after the criminal proceedings
had been initiated against him but before his direct
appeal had been decided, we held that his right to
counsel attached to his motion for a new trial. See
Kitchen, 227 F.3d at 1018-19. Westmoreland also filed
his motion after criminal proceedings against him
had been initiated but before his direct appeal was de-
cided. Thus, like Kitchen, Westmoreland had a right
to counsel for his motion for new trial.
No. 10-3961 25
But the analysis does not end there. Yes, Westmoreland
had a right to counsel, but Westmoreland had counsel. He
asked his counsel to represent him in his pursuit of a
new trial, but his counsel refused. It is well established
that a defendant’s right to counsel does not give him a
right to force his counsel to make every possible non-
frivolous argument that could be made on his behalf.
See Jones v. Barnes, 463 U.S. 745, 751 (1983) (“Neither Anders
[v. California, 386 U.S. 738 (1967)] nor any other decision
of this Court suggests . . . a constitutional right to
compel appointed counsel to press nonfrivolous points
requested by the client, if counsel, as a matter of profes-
sional judgment, decides not to present those points.”).
Westmoreland’s argument therefore is better under-
stood not in terms of a denial of counsel but as an argu-
ment that his counsel’s refusal to pursue the arguments
in his motion for a new trial amounted to ineffective
assistance of counsel. The fact that Westmoreland’s
arguments, when they were heard, were heard as part
of his pro se motion for a new trial does not permit him
to reframe an ineffective assistance of counsel claim as
a complete denial of counsel. Thus, to prevail, West-
moreland must satisfy the requirements of Strickland
v. Washington, 466 U.S. 668, 687 (1984). Under Strick-
land, Westmoreland must show that his counsel’s perfor-
mance was deficient, meaning that it was unreasonable
under prevailing professional norms. If he could make
that showing, he would also have to show that he was
prejudiced by the deficiency.
Though the record is not well developed on this
point, we doubt that Westmoreland’s counsel’s decision
26 No. 10-3961
to refuse to pursue Westmoreland’s arguments in
favor of a new trial was anything other than a
reasonable strategic choice. But even if Westmoreland
were somehow able to overcome that hurdle, he has
not shown prejudice. His argument is that he was prej-
udiced because his motion for new trial had merit.
Those arguments have now been developed on appeal
by highly capable appointed counsel. We have exam-
ined those arguments and affirm the district court in
finding that a new trial was not warranted. Without a
meritorious argument for a new trial, Westmoreland
cannot show prejudice, and without prejudice, he cannot
show that his counsel’s performance was deficient in
refusing to present his arguments. Accordingly, whether
fashioned as an ineffective assistance of counsel claim
or as a right to counsel claim, his claim still fails.
A FFIRMED.
3-25-13