United States v. Anderson, William A. ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 01-2933 & 01-2934
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIAM A. ANDERSON and BRYAN S. GARRETT,
a/k/a BRIAN SCOTT GARRETT,
Defendants-Appellants.
Appeals from the United States District Court
for the Southern District of Illinois.
No. 00-CR-40013-JPG--J. Phil Gilbert, Judge.
Argued April 11, 2002/1--Decided May 3, 2002
Before CUDAHY, DIANE P. WOOD, and EVANS,
Circuit Judges.
EVANS, Circuit Judge. Bryan Garrett and
William Anderson were convicted of
conspiring (along with Robert Pennington
and Debra Garrett) to manufacture
anddistribute more than 50 grams of
methamphetamine. Garrett was also
convicted of being a felon in possession
of a firearm and two crimes related to
his methamphetamine activities. Anderson
was convicted of carrying a firearm in
relation to a drug trafficking crime.
Both were sentenced to lengthy prison
terms: 432 months for Garrett and 180
months for Anderson.
Garrett raised three issues on appeal,
two of which (relating to his sentence)
have been formally withdrawn. His third
argument--that the government only proved
"multiple conspiracies" not alleged in
the indictment--has also been raised by
Anderson. We have reviewed the arguments
on both sides of the issue, which was not
raised before the district court, and we
do not find plain error. There was more
than enough evidence to convict Garrett
and Anderson of the charged conspiracy,
regardless of any side agreements either
one may have had with other people.
So that leaves one remaining issue,
pressed by Anderson, which requires a
brief glance at the facts. On June 29,
1999, a car Anderson was driving was
pulled over by a Richland County
(Illinois) sheriff for a traffic
violation. During the stop, the officer
found a 9 mm gun, a few grams of metham
phetamine, some marijuana, and sundry
other drug paraphernalia. Based on this
incident, Anderson was charged in state
court with unlawful use of a weapon,
unlawful possession of a controlled
substance (methamphetamine), and "armed
violence" under Illinois law./2 William
Hoffeditz, a public defender for Richland
County, was appointed as Anderson’s
lawyer.
Other arrests were occurring in Richland
County around the time Anderson was
pinched. On April 8, 1999, someone named
Danny Cockerell was charged with unlawful
delivery of a controlled substance
(cocaine). According to the information,
this charge derived from events occurring
on April 1, 1998 (this may be a typo--the
year perhaps should have been 1999). On
October 27, 1999, the State also charged
him with possession of a weapon by a
felon (occurring on October 26, 1999). On
December 6, 1999, Debra Garrett was
charged with unlawful possession of a
controlled substance (methamphetamine),
based on events occurring on September 5,
1999. On December 16, 1999, Robert
Pennington was charged with unlawful
criminal drug conspiracy (with Bryan
Garrett to manufacture methamphetamine
between December 1996 and December 16,
1999) and unlawful possession of a
substance with the intent to use it for
the manufacture of a controlled substance
(occurring on December 3, 1999).
With the benefit of hindsight, we know
that all of these state defendants
eventually became entangled in this
federal prosecution. Debra Garrett and
Pennington were indicted for conspiring
with Bryan Garrett and Anderson to
manufacture and distribute
methamphetamine./3 Debra Garrett and
Cockerell testified against Anderson at
trial.
Anderson seeks advantage from another
fact common to this group: they were all
represented in state court by attorney
Hoffeditz. In the district court,
Anderson moved to dismiss his federal
charges based on allegations that, in the
state action, he shared confidences with
Hoffeditz, who may have passed them on to
one of his other clients, who may have
shared them while cooperating with the
federal authorities, who may have used
the information to prosecute Anderson.
(For those keeping count, that’s three
rather big "may haves.")
The legal contours of the right Anderson
seeks to vindicate--whether it is based
in his Sixth Amendment right to effective
assistance of counsel, his Fifth
Amendment privilege against self-
incrimination, or his Fifth Amendment
right to due process--are not totally
clear. But the district judge held that
Anderson had not stated grounds for
dismissing the indictment. Moreover,
Anderson was represented in the federal
prosecution by a different attorney, so
there was no conflict of interest
warranting disqualification.
On appeal, the issue is slightly
different. Anderson claims that the
district judge should have held a hearing
to determine whether Hoffeditz had, in
fact, breached confidences that made
their way to the feds. We will review the
district judge’s decision not to grant an
evidentiary hearing in this case for an
abuse of discretion. Cf. United States v.
Valona, 834 F.2d 1334, 1340 (7th Cir.
1987) (reviewing decision not to grant a
hearing on allegations of pre-indictment
delay for an abuse of discretion); United
States v. Losing, 539 F.2d 1174, 1178
(8th Cir. 1976) ("[T]he determination of
whether a hearing is required is
necessarily dependent upon the particular
facts which attend a particular request,
and the district court is properly left
with a certain amount of discretion in
this regard.").
Judge Gilbert was well within his
discretion to deny a hearing. Anderson’s
argument has three analytical steps, two
of which he has not alleged with
sufficient detail, definiteness, or
specificity to warrant a hearing. See
United States v. Hamm, 786 F.2d 804, 807
(7th Cir. 1986). The first step in
Anderson’s argument seems clear enough.
In an affidavit, Anderson said, "I have
discussed my case with Mr. Hoffeditz,
answered all questions asked of me by Mr.
Hoffeditz, and have conveyed my
confidences with respect to all criminal
investigations concerning me to Mr.
Hoffeditz." The state charges arose from
the June 29, 1999, traffic stop, which
also formed the basis for the federal
indictment against Anderson for carrying
a firearm in relation to a drug
trafficking crime. Thus, it seems likely
that Anderson told Hoffeditz information
that would have been of interest in the
federal prosecution. (Of course, it is
not clear from the affidavit whether
Anderson told Hoffeditz information--
apart from information about the events
of June 29, 1999--that would have been
relevant to the conspiracy count in the
indictment.)
But Anderson stumbles on the second
step. He alleges that Hoffeditz may have
breached these confidences by passing the
information on to Debra Garrett,
Cockerell, or Pennington; he does not
allege that Hoffeditz breached such
confidences. He relies merely on the
coincidence of Hoffeditz’s client list.
In fact, Anderson has not filed a
complaint with the Illinois Attorney
Registration and Disciplinary Commission
against Hoffeditz, although his affidavit
states that he has written the clerk of
court seeking a new lawyer in state
court. Nor is the nature of the "joint"
representation suspicious. Anderson was
charged with crimes deriving from a
discrete incident on a specific day; none
of the other defendants were implicated
in those charges. At that point, only
Cockerell was being represented by
Hoffeditz, and his charges arose from
facts occurring at least 2 months prior
to Anderson’s June 29, 1999, traffic
stop. Debra Garrett was charged on
December 6, 1999, based on events
occurring more than 2 months after the
traffic stop. Only Pennington was charged
with a drug-related conspiracy and then
naming only Bryan Garrett as a co-
conspirator. Anderson (and for that
matter Debra Garrett) was not thrown into
the conspiracy mix until federal
indictments started raining down. These
facts are insufficient to trigger a
concern that Hoffeditz, a member
(apparently in good standing) of the
Illinois bar, was breaching confidences
willy-nilly.
Last, even assuming Hoffeditz breached
his duty of confidentiality, Anderson has
not identified what information
Hoffeditz’s clients passed along to the
agents or prosecutors in this case that
prejudiced him at trial. See United
States v. Aulicino, 44 F.3d 1102, 1117
(2d Cir. 1995) (stating that in the
absence of government interference with
the attorney-client relationship, a
hearing on a claimed Sixth Amendment
violation is not required unless the
defendant identifies specific facts
showing the communication of privileged
information to the prosecutor and
resulting prejudice). Pennington did not
testify at Anderson’s trial. Debra
Garrett and Cockerell testified to events
based on personal knowledge. Anderson
here has simply failed to identify
information presented at trial that he
thinks originated in his discussions with
Hoffeditz or that he thinks derived from
leads provided by those discussions. We
were informed by the government at oral
argument that the United States Attorney
for the Southern District of Illinois has
an "open file" policy that provides
access to witness proffers. Anderson has
not pointed to information elicited
during any proffers that he thinks
derived from information he told
Hoffeditz.
Given these facts, Judge Gilbert did not
abuse his discretion by declining to hold
a hearing.
AFFIRMED.
FOOTNOTES
/1 Bryan Garrett’s appeal is submitted on the briefs
and the record, oral argument having been waived.
/2 For a discussion about what "armed violence" can
mean, see United States v. Fife, 81 F.3d 62 (7th
Cir. 1996).
/3 Pennington was named (with Garrett) in the ini-
tial indictment on February 9, 2000. Debra Gar-
rett was named (with Garrett, Pennington, and
Anderson) in the first superseding indictment on
April 19, 2000. Pennington pled guilty on April
20, 2000; Debra Garrett pled guilty on August 3,
2000. The second superseding indictment, under
which Garrett and Anderson were convicted, issued
on August 11, 2000.