United States v. Price, Benjamin C. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3965
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BENJAMIN C. PRICE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:04-CR-81—Philip P. Simon, Judge.
____________
ARGUED NOVEMBER 1, 2007—DECIDED MARCH 27, 2008
____________
Before POSNER, WOOD, and SYKES, Circuit Judges.
WOOD, Circuit Judge. When Officer Terry Smith of the
Gary, Indiana, police department responded to a call on
June 28, 2003, about fires that people were setting in
alleys located in a high-crime area, he stopped to ques-
tion Veronica Sanchez, whose car was parked nearby. As
Officer Smith spoke with Sanchez, Benjamin Price strolled
past him, said nothing, and sat down in the passenger
side of Sanchez’s car. It was not long before Smith and
another officer discovered a gun in the car, near Price’s
feet. In due course, Price was indicted on charges of being
a felon in possession of a firearm, in violation of 18 U.S.C.
2 No. 06-3965
§§ 922(g) and 924(e)(1). After a number of false starts,
which we describe below, he was tried, convicted by a
jury, and sentenced to 250 months in prison. Appointed
counsel on appeal have raised a number of challenges
both to his conviction and to his sentence. While we
appreciate their efforts, we find no reversible error and
thus we affirm.
I
Price’s encounter with Officer Smith and his colleagues
was far from his first brush with the law. By 2003, his
rap sheet included the following felony convictions:
Burglary, Cook County (Illinois) 1986; Burglary, Cook
County 1986; Criminal recklessness, Lake County 1990;
Possession of cocaine, Lake County 1990; Possession of
a handgun, Lake County 1993; Possession of heroin,
Lake County 1994; Criminal recklessness while armed,
Lake County 1996; and Possession with intent to deliver
a controlled substance, Cook County 1997. In addition
to these convictions, he had some 20 additional arrests
from 1981 through 2003, according to the presentence
report. The fact that three of these prior offenses involved
controlled substances accounts for the charge under
18 U.S.C. § 924(e)(1), which enhances penalties for such
recidivists.
The primary facts that are pertinent to Price’s appeal
are those that relate to his motion to suppress. According
to the police officers, after Price got into Sanchez’s car,
Officer Justin Illyes approached and asked Price to get
out. As Price was doing so, Officer Illyes noticed a
white towel with the butt of a gun protruding on the
floorboard by the passenger seat. Officers Smith and Illyes
No. 06-3965 3
handcuffed both Sanchez and Price, who were arguing
over whose gun it was. Officer Illyes testified that at
some point during this exchange, Price admitted that the
gun was his, that he was a convicted felon, and that he
was not allowed to possess a gun. Officer Illyes then took
Price into custody, while Smith gave Sanchez a ticket
for obstructing the alley. Either Illyes or Smith (the testi-
mony was unclear) took Price into the police station.
Sanchez disputed many of these facts, including the
race and sex of the police officer who initially approached
her, the words that the officer spoke to her, when the
gun was discovered, and when Price first arrived. Price
denied that he ever admitted that the gun was his. Instead,
he testified that he arrived on the scene only after the
gun had been seized. In any event, after Price’s arrest, the
Gary Police released him from custody, and he went to
Florida. After the federal charges were filed against him,
he was arrested in that state, and two federal agents
spoke with him. During that conversation, he admitted
again that he had acknowledged that the gun belonged
to him.
The district court held a suppression hearing on April 22,
2005, which resulted in a written order issued on April 29,
2005, denying the motion to suppress. Much later, and
after several intervening procedural steps (including the
start of a jury trial, a resulting mistrial, and a flurry of
motions from both sides), the district court decided in
March of 2006 to reopen the suppression hearing to give
Price the opportunity to present additional testimony.
At the reopened hearing, which took place on April 5,
2006, Price questioned Foster Ward, a member of the Gary
Police Department, about his acquaintance with Sanchez.
Ward testified that he did not know her. At the conclusion
4 No. 06-3965
of the hearing, the court stood by its initial decision to
deny the motion to suppress, explaining in essence that
it found the testimony of the officers to be more credible
than the account that Price and Sanchez offered.
A week after the hearing, the government filed a motion
in limine seeking to bar any evidence that Ward actually
did know Sanchez and had been in a sexual relationship
with her, and that he had told Sanchez that he intended
to lie under oath and claim that he did not know her.
Price filed a motion for a continuance, hoping to explore
this perjury, but the district court denied the motion,
finding that this was a peripheral matter that did not
justify further delay of the trial. Later, Price subpoenaed
Ward to appear at trial, but Ward failed to show up. In
Ward’s absence, the district court allowed Ward’s testi-
mony to be read into the record. Price also wanted to
call Detective Keith Richardson at the suppression hear-
ing, because he believed that Richardson could offer
exculpatory evidence. The court refused to call him at
that time, but it ruled that Price was free to call Richard-
son at the trial. When the time came, however, the court
changed its mind and barred Richardson from testifying.
The other part of the story on which the appeal turns
concerns Price’s zig-zags between accepting the repre-
sentation of a series of lawyers and proceeding pro se.
Immediately after Price was indicted, Public Defender
John Martin entered an appearance for him on October 25,
2004. A short time later, Price moved to represent himself
with standby counsel. Magistrate Judge Rodovich carefully
warned Price of the pitfalls of that course of action, but
Price persisted and the judge granted the motion. Less than
a month later, on December 13, 2004, Price moved to
substitute a new attorney and to withdraw his request
No. 06-3965 5
to proceed pro se. The court acquiesced, and on January 7,
2005, it appointed Attorney Arlington J. Foley to represent
Price. Foley worked diligently for several months, filing
motions on Price’s behalf, but Price wrote a number of
letters to the court expressing his dissatisfaction with
Foley. Price even went so far as to forward a copy of one
of his letters to the Indiana Disciplinary Committee; at
that point, the district court intervened and held a hear-
ing on April 5, 2005, on the topic of Foley’s representa-
tion. Everyone agreed that Foley would stick with the case,
but on the first day of the initial trial, May 2, 2005, Price
complained repeatedly about Foley. After the jury was
selected and sworn in, Price renewed his complaints. The
court finally offered Price the options of proceeding in the
current trial with Foley, proceeding pro se with Foley as
standby counsel, or accepting a mistrial and securing
new counsel. After an overnight recess at the govern-
ment’s request, Price expressly consented to the mistrial.
The court granted the mistrial on two grounds: Price’s
consent and its finding that there was a manifest necessity
for a mistrial because of Price’s lack of participation in
the jury selection process. At that point, the court ap-
pointed Charles Stewart to represent Price.
Only three weeks later, on May 25, 2005, Price announced
again that he wished to proceed pro se. The court agreed
and designated Stewart as standby counsel, over Price’s
objection. It refused at that point to recruit yet a fourth
lawyer. From May 31, 2005, until the second trial was
over, Price peppered this court with interlocutory ap-
peals, six by our count. Eventually, we entered an order
sanctioning him $500 for his frivolous filings. Price was
still appearing pro se when his second trial began, but on
Day 2, Stewart took over and completed the trial. After the
6 No. 06-3965
jury returned a guilty verdict, Stewart moved to with-
draw as counsel. The court granted that motion and
appointed Kevin Milner to handle Price’s sentencing.
Largely because of his lengthy criminal record, Price
received a sentence of 250 months, a point in the lower
third of the applicable range of 235 to 293 months. Milner
filed a Notice of Appeal on Price’s behalf, but he then
asked this court to relieve him of his responsibility for
the case. We granted that motion on December 12, 2006,
and appointed Attorney Nancy Riley to represent Price
on appeal; she has done so conscientiously.
II
Price raises four challenges to his conviction, one to his
sentence, and a general complaint that the cumulative
effect of the alleged errors rendered the proceeding
fundamentally unfair. Briefly, with respect to the con-
viction he claims that his double jeopardy rights were
violated when the court granted the mistrial and pro-
ceeded with the second trial; that the court erred when
it refused to allow him time to investigate Officer Ward’s
perjury; that the court erred when it barred Detective
Richardson from testifying at trial; and finally, that the
government failed to disclose potentially exculpatory
material, in violation of his rights under Brady v. Maryland,
373 U.S. 83 (1963). Even if none of these alone warrants
reversal, he continues, cumulatively they add up to a
constitutionally deficient proceeding. With respect to his
sentence, Price argues only that the district court’s choice
was unreasonable, because (in his view) the court
gave inadequate weight to significant mitigating factors
that the PSR had identified.
No. 06-3965 7
A
1. Double Jeopardy
“The Double Jeopardy Clause of the Fifth Amendment
protects a criminal defendant from repeated prosecutions
for the same offense.” Oregon v. Kennedy, 456 U.S. 667, 671
(1982) (citing United States v. Dinitz, 424 U.S. 600, 606
(1976)). This protection does not arise until jeopardy
attaches, which generally occurs when the jury is se-
lected and sworn. See Illinois v. Somerville, 410 U.S. 458,
467 (1973). As the Somerville Court pointed out, however,
“the conclusion that jeopardy has attached begins, rather
than ends, the inquiry as to whether the Double Jeopardy
Clause bars retrial.” Id. In Dinitz, the Court held that
there was no double jeopardy violation when a defend-
ant was retried after his original trial ended in a mistrial
at his own request. The outcome might have been differ-
ent, the Court noted, if there had been evidence of govern-
mental actions intended to provoke a mistrial or other
evidence of bad faith on the part of the prosecutor. 424
U.S. at 611. But, as this court later noted in United States
v. Jozwiak, “[a] right to obtain implies a right to relinquish,”
and a defendant’s free choice to decide not to proceed
with the first jury does not deprive him or her of any
constitutional entitlement. 954 F.2d 458, 459 (7th Cir. 1992).
In Kennedy, the Supreme Court explained that
[w]here the [first] trial is terminated over the
objection of the defendant, the classical test for lifting
the double jeopardy bar to a second trial is the
“manifest necessity” standard first enunciated in
Justice Story’s opinion for the Court in United States
v. Perez, [22 U.S. (9 Wheat.) 579, 580 (1824)]. . . .
But in the case of a mistrial declared at the behest
of the defendant, quite different principles come into
8 No. 06-3965
play. Here the defendant himself has elected to
terminate the proceedings against him, and the
“manifest necessity” standard has no place in the
application of the Double Jeopardy Clause.
456 U.S. at 672. In the latter situation, the Court held in
Kennedy, “the circumstances under which . . . a defendant
may invoke the bar of double jeopardy in a second effort
to try him are limited to those cases in which the con-
duct giving rise to the successful motion for mistrial
was intended to provoke the defendant into moving for
a mistrial.” Id. at 679.
Although the district court in Price’s case found both
that Price had consented to the mistrial and that mani-
fest necessity supported the order of mistrial, we see no
need to address the second of those grounds. Recognizing
the legal standards we have just described, Price argues
that the district court provoked him into moving for
a mistrial, and thus that we should not treat this as a
mistrial granted at his behest. In order to prevail on this
point, Price would have to show that there was “gov-
ernmental or judicial conduct intended to goad the defen-
dant into assenting” to the mistrial. United States v. Combs,
222 F.3d 353, 359 (7th Cir. 2000). This record reveals
nothing of the sort. To the contrary, it depicts a judge
who patiently worked with Price to assure that he was
represented by counsel that was satisfactory to him (when
that was what he wanted) and that he could exercise his
right to proceed pro se (when that was what he wanted).
The judge’s evidentiary rulings and decisions relating to
the motion to suppress may have frustrated Price, but
that alone cannot show that the judge was trying to
goad him into seeking a mistrial. Otherwise this standard
would have no meaning at all, as we can presume that
No. 06-3965 9
every defendant dislikes rulings that go against him.
Indeed, as we explain below, we see no error in the
judge’s rulings; this conclusion forecloses entirely the
possibility that the judge adopted them solely in order
to goad Price into relinquishing his first jury.
We note for the sake of completeness that the errors
that supposedly motivated the court to incite Price to
move for a mistrial were (1) its refusal to appoint a
third new attorney for Price and (2) its handling of an
exchange with potential Juror McDade during voir dire,
during which there was an indirect reference to Price’s
being in custody. The court acted well within its discre-
tion with respect to Price’s many requests for appoint-
ment of counsel. In the exchange with McDade, who had
indicated that he was employed with “the Department
of Justice at the federal prison in Chicago,” the court
interrupted him just after he said, “I just want to go ahead
and I say that I do—well, I have seen the—.” At that point,
at a bench conference, the court told counsel that it
“wanted to cut [McDade] off before the other jurors
found out exactly what the MCC is, so that they don’t
know that he’s in custody.” Defense counsel moved then
for a mistrial, but the court denied the motion and dis-
missed McDade. This strikes us as a perfectly reasonable
way to handle the situation, and we are satisfied that
the court intervened before any irreparable harm had
occurred.
2. Investigation of Officer Ward
On May 9, 2006, Price moved pro se for a continuance so
that his hired investigator could explore the fact that
Officer Ward had misrepresented the extent of his ac-
10 No. 06-3965
quaintance with Veronica Sanchez during the reopened
suppression hearing. In its written order denying this
motion, the court reviewed the background of the rela-
tionship between Sanchez and Ward:
In sum, Price and Sanchez were present in an alley
in Gary, Indiana in July 2003 when police seized a
gun from the car Sanchez was driving. Price, a con-
victed felon, is charged with possessing the gun.
According to the government, Ward was the last of
multiple police officers to arrive at the scene. He was
not the officer who initially stopped Sanchez; he was
not the officer who arrested Price; he was not the
officer who seized the firearm at issue. Ward has
testified that he did not even exit his vehicle because,
by the time he pulled into the alley, another officer
had Price in handcuffs and was driving him away
from the scene.
After Price’s arrest, Ward pursued Sanchez socially.
He occasionally would run into Sanchez around
Gary and would talk with her when he did. Eventually,
sometime in 2005, Ward and Sanchez maintained a
sexual relationship for a brief period of time while
Sanchez was cooperating with the government in
this case. Nonetheless, on April 5, 2006, Ward testi-
fied at a suppression hearing that he does not remem-
ber the name of the female with Price on the night
in question, that he does not remember Veronica
Sanchez, and that the name Veronica Sanchez does
not “ring a bell.”
After the suppression hearing, as we noted above, the
government filed a motion in limine on April 13, 2006, to
exclude any evidence or argument about Ward’s relation-
ship with Sanchez. In that motion, the government re-
No. 06-3965 11
vealed how it had learned about the relationship. It
also disclosed that Ward had admitted that he had
spoken to Sanchez shortly before the renewed sup-
pression hearing, had instructed her to deny any relation-
ship with him, and had promised that he would do the
same.
In denying Price’s motion for a continuance, the
court took a number of factors into account. First, it
pointed out that Price had received approval for an inves-
tigator on April 11, and that he had known about Ward
and his testimony since April 5. At the time the govern-
ment revealed Ward’s dissembling, 32 days remained
before the trial was due to start. Although the investigator
advised Price that this was not long enough to look into
the issues raised by Ward’s admitted relationship
with Sanchez, Price never said what work the investigator
had done or what else needed to be done. Second, the
court found that Price was not likely to suffer any prej-
udice from the denial of the continuance. He already
knew about the relationship and Ward’s perjury. Price
speculated that Ward’s behavior might somehow have
infected the other police officers who arrested Price and
seized the firearm, but the court found that Price was
free to explore that theory at trial when he cross-examined
Sanchez and the officers themselves. Third, the court
found that the case was not complex. Fourth, Price was not
claiming that the government had delayed in producing
this information. Fifth, Price had not shown that the
continuance would help in any event, given the specula-
tive nature of his theory of prejudice. Finally, the court
concluded that Price’s case had already consumed sig-
nificant judicial resources and that there was no reason
to stretch it out further.
12 No. 06-3965
We have little to add to the district court’s reasoning.
The decision whether to grant or deny a continuance is
one that lies within the district court’s discretion. We
would reverse only if there were an abuse of that discre-
tion and a showing of actual prejudice. See United States
v. Miller, 327 F.3d 598, 601 (7th Cir. 2003). Of all the points
the court cited, the one that most strongly supports
its decision in our view is the speculative value further
evidence would have had. While Ward’s behavior was
not worthy of a sworn police officer, the judge was en-
titled to conclude that the benefit of delaying the trial for
a detour into Ward’s sexual relationship with Sanchez
was not worth the cost.
3. Richardson Testimony
Price wanted to introduce testimony from Detective
Keith Richardson at the trial in order to show the
“highly irregular and entirely incompetent investigation
performed by the Gary Police Department, upon which the
Government’s case rested.” Here again, our review is only
for abuse of discretion. See United States v. Hernandez,
330 F.3d 964, 969 (7th Cir. 2003) (citing United States v.
Hughes, 970 F.2d 227, 232 (7th Cir. 1992)). Richardson was
not on the scene during Price’s arrest and was not in-
volved in the recovery of any evidence, which is enough to
support the court’s decision to bar his testimony at the
suppression hearing. It is true that at the suppression
hearing the court suggested that Price would be able to
call Richardson at trial, but Price misinterprets this state-
ment. It reflected only the fact that a broader range of
evidence would be admissible at trial. The court never
promised that it would refrain from evaluating the admis-
sibility of evidence at the trial in light of the record as
No. 06-3965 13
it was developing. And at trial, the court did not sum-
marily reject Richardson’s testimony. It allowed Price
and his counsel to make a proffer, outside the hearing of
the jury, about what Richardson would say and why it
was relevant. Only after hearing them out did the court
decide that the testimony was wholly irrelevant and
rule that Richardson could not testify. Our own review
of the proffer convinces us that this ruling was well
within the court’s discretion.
4. Brady Violation
In this part of the appeal, Price argues that the govern-
ment’s failure to disclose the identities of certain white,
female police officers in the Gary Police Department
violated his rights under Brady. The names of these officers,
he claims, were critical to his efforts to corroborate
Sanchez’s testimony that a white female officer had been
the first one to approach her, rather than Officer Smith,
who is male and African-American. Price did not raise
this issue before the trial court, and so (as he concedes) our
review is for plain error only. See United States v.
Dominguez Benitez, 542 U.S. 74, 81-82 (2004); United States
v. Olano, 507 U.S. 725, 732-35 (1993).
The government argues that there was no error at all,
plain or otherwise. In order to show a Brady violation, the
defendant must demonstrate prejudice (among other
things). Price cannot do so. He subpoenaed three of the
white female officers, and he was able to speak with at
least one of them. She had no recollection of the incident.
It is unclear whether the other two responded to the
subpoenas, but it is raw speculation to suppose that
either would have had anything to add, for neither of
14 No. 06-3965
their names appears on the dispatch report listing the
officers in the area at the time of Price’s arrest. Finally,
Price never asked for a continuance to pursue this evi-
dence, and any claim that such a request would have
been futile is unpersuasive in light of the fact that three of
Price’s four requests for continuances had been granted.
There was no error, plain or otherwise, in the court’s
ruling.
5. Cumulative Error
Even if none of the individual errors in a case war-
rants reversal standing alone, it sometimes happens that
the cumulative effect of a number of errors is an irrepara-
bly flawed trial. Alvarez v. Boyd, 225 F.3d 820, 824 (7th
Cir. 2000). Stepping back from the trees and looking at
the forest, Price claims that his defense centered on dis-
crediting the investigation conducted by the Gary Police,
and that the court’s rulings crippled this effort. When we
are conducting an analysis of the effect of individual
actions on the whole, however, we must look at the
entire record. Price’s argument is doomed, both because
we have not found error in the underlying actions about
which he is complaining, and because the jury was en-
titled to believe the considerable evidence against him
(including the admissions reported by both the Gary
police officers and the federal agents).
B
Finally, we turn to Price’s complaint that his sentence
was unreasonably long. He asserts that the district court
erred by focusing exclusively on his criminal history,
No. 06-3965 15
instead of recognizing that a lighter sentence was ap-
propriate given his history of psychiatric problems and
substance abuse.
The district court noted that it had received and studied
the PSR, along with Price’s objections and the govern-
ment’s response. Taking into account the adjustments for
Price’s obstruction of justice and armed career criminal
status, the court then noted that the guidelines range
was 235 to 293 months. (At that point, Price interrupted
the court mid-sentence to proclaim “You f**ked me.” This
was before he knew what the judge was going to do
with that range, and before either he or his attorney
offered any reasons to mitigate the sentence. The district
judge, it appears, ignored the outburst.) Moving on,
Attorney Milner (by then representing Price as his fourth
appointed attorney in this case) stressed the advisory
nature of the guidelines and urged the court to be lenient
because Price, despite his lengthy criminal record, was “not
a violent man by nature,” was bright, and was trying
to better himself. Price spoke also, but he dwelt on how
unfairly he was being treated. Neither one of them said
anything about psychiatric problems or substance abuse.
The government urged a sentence at the top of the range.
The court then acknowledged the advisory nature of
the guidelines and its duty to tailor the sentence in light
of the factors set out in 18 U.S.C. § 3553(a). It noted, on the
one hand, that Price was a bright man but, on the other,
that he was “working on [his] 10th criminal conviction”
and that the PSR described “a virtual revolving door of
the criminal justice system.” Finding that Price had
shown a persistent unwillingness to conform his con-
duct to the law, the court selected a sentence of 250 months.
From an appellate perspective, we are entitled to treat
16 No. 06-3965
this sentence as presumptively reasonable. Rita v. United
States, 127 S. Ct. 2456 (2007). Nothing in this record makes
us think either that the district court misunderstood its
own broad discretion, or that the sentence it selected
was an unreasonable one.
The judgment of the district court is AFFIRMED.
USCA-02-C-0072—3-27-08