United States v. Donald Weidenburner , 550 F. App'x 298 ( 2013 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 4, 2013
Decided November 4, 2013
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 12-2579
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois.
v. No. 4:02-CR-40053-001-GPM
DONALD LEE WEIDENBURNER, G. Patrick Murphy,
Defendant-Appellant. Judge.
ORDER
A jury found Donald Weidenburner guilty of conspiring to manufacture and
distribute methamphetamine, see 21 U.S.C. §§ 846, 841(a)(1), and the district court
sentenced him to 360 months’ imprisonment. Weidenburner filed a notice of appeal, but
his appointed lawyer asserts that the possible appellate claims are frivolous and seeks to
withdraw under Anders v. California, 386 U.S. 738, 744 (1967). Weidenburner opposes
counsel’s motion. See CIR. R. 51(b). We confine our review to the potential issues
identified in counsel's facially adequate brief and Weidenburner’s response. See United
States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
No. 12-2579 Page 2
Greg Hanisch and Justin Mitchell, both Illinois State Police agents assigned to the
Southern Illinois Drug Task Force, received information in late 2001 that
methamphetamine was being manufactured at a residence in Gallatin County, which
borders Indiana and Kentucky. They executed a search warrant at the home and
discovered large amounts of methamphetamine, raw materials, firearms, and lab and
surveillance equipment. They also located Weidenburner’s van on the property as well
as his bank identification card and a notebook outlining his shares of several
methamphetamine batches.
On the same day that the agents executed the warrant, they also learned that
Weidenburner and his girlfriend, Michelle Barth, had been arrested in Indiana for
attempted dealing in methamphetamine. Agent Hanisch had enlisted Weidenburner’s
cooperation years earlier during another methamphetamine investigation and decided
to seek his cooperation again. He and Agent Mitchell spoke with Weidenburner a few
days later at the Spencer County Jail in Rockport, Indiana, where Weidenburner was in
custody on the Indiana drug charge. The agents had not sought permission from
Weidenburner’s court-appointed attorney, even though Weidenburner had refused to
speak with Indiana authorities without an attorney present. Neither did the agents give
Miranda warnings before the interview. After being told that any cooperation would be
made known to state and federal prosecutors in Illinois, Weidenburner disclosed details
about his and his cohorts’ manufacture and distribution of methamphetamine in both
Illinois and Indiana. Before leaving the jail, the agents invited Weidenburner to contact
them if he made bail and wished to cooperate further.
Weidenburner was released about a month after that interview, and twelve days
later he contacted the agents. He arranged a meeting at his hotel room and gave the
agents a written statement that he had dictated to Barth (repeating much of what he
said at the jail). Over the next three months Weidenburner secretly recorded phone calls
and other conversations with his coconspirators in Illinois, and he also allowed Agents
Hanisch and Mitchell to record interviews with him in March and April 2002. Before the
first of these interviews, Weidenburner signed a cooperation agreement admonishing,
among other provisions, that the agents would disclose Weidenburner’s cooperation to
prosecutors but could not make “promises or predictions regarding the likely
disposition of any criminal charges.”
Weidenburner’s work as an informant ended in June 2002 after he again was
arrested in Indiana on drug charges. In September he was released on bail and about a
No. 12-2579 Page 3
month later a grand jury in the Southern District of Illinois indicted him in this case.
Before he could be arrested, however, Weidenburner fled Illinois along with Barth (who
would be indicted later). The pair left Barth’s mother a letter saying they would fight
federal prosecution but could not do so “from behind bars.” Barth surrendered in 2004,
but Weidenburner avoided capture until deputy marshals acting on a tip arrested him
in Kentucky in late 2010. He was carrying a debit card and a Kentucky driver’s license
in another name.
At trial the government introduced the statement Weidenburner had dictated to
Barth, and Agent Hanisch recounted Weidenburner’s admissions during the recorded
interviews in March and April 2002. (The government did not offer testimony about
Weidenburner’s jailhouse confession in Rockport, Indiana, because, prosecutors
conceded, that confession was obtained in violation of the Fifth Amendment.
See Miranda v. Arizona, 384 U.S. 436 (1966); Edwards v. Arizona, 451 U.S. 477, 481–82
(1981).) The government also called several cooperating codefendants, including Barth.
Some described cooking methamphetamine with Weidenburner or allowing him to
operate a lab on their property, and others explained how he recruited them to obtain
raw materials or to sell the finished product. Several police officers also described
evidence gathered from methamphetamine labs tied to Weidenburner.
In her Anders submission counsel first evaluates whether Weidenburner could
argue that the district court erred in rejecting his claim that the 8 ½-year interval
between his indictment in 2002 and capture in 2010 violated his Sixth Amendment right
to a speedy trial. That claim would be preposterous because Weidenburner had fled
Illinois and was living in Kentucky under various aliases the entire time. See United
States v. Wanigasinghe, 545 F.3d 595, 598–99 (7th Cir. 2008) (explaining that there was
“absolutely no hint” that government had delayed “its case to gain a tactical advantage”
over defendant who fled country to avoid prosecution); United States v. Arceo, 535 F.3d
679, 684–86 (7th Cir. 2008) (explaining that 6 ½-year delay between indictment and
arrest was attributable mostly to defendant’s flight to avoid prosecution and use of
aliases to avoid detection); United States v. Mitchell, 957 F.2d 465, 469 (7th Cir. 1992)
(noting that defendant’s flight to evade prosecution was “root cause” of delay). In his
motion Weidenburner alleged that unnamed Illinois State Police officers had suggested
that he “make himself scarce” to avoid retaliation from coconspirators who would soon
be indicted, but even if that statement is true it does not explain why Weidenburner also
was hiding from the police. Agent Hanisch testified at trial that he had told
Weidenburner that his indictment was imminent, and Barth, the defendant’s girlfriend,
No. 12-2579 Page 4
testified that she and Weidenburner had fled to avoid prosecution. The letter they left
for Barth’s mother proves as much.
Appellate counsel also evaluates whether Weidenburner could claim that a
second speedy-trial motion, this one statutory, should have been granted. A defendant
must be tried within 70 nonexcludable days from the latter of his indictment or first
appearance in the charging district. 18 U.S.C. § 3161(c)(1), (h). Weidenburner moved to
dismiss the indictment in October 2011, just over eight months after his initial
appearance in the Southern District of Illinois. His trial lawyer did not dispute the
district court’s conclusion in deciding the motion that—given the amount of time
explicitly excluded under the statute because of pretrial motions, see id. § 3161(h)(1)(D),
and continuances sought by Weidenburner, see id. § 3161(h)(7)(A)—only 35
nonexcludable days had elapsed. (Weidenburner never renewed his motion to dismiss,
so only the period before its filing is relevant. See United States v. Gates, 709 F.3d 58, 68
(1st Cir. 2013); United States v. Mathis, 96 F.3d 1577, 1579 (11th Cir. 1996); United States v.
Mayes, 917 F.2d 457, 460 (10th Cir. 1990).) Instead, trial counsel argued that,
notwithstanding the statutory exclusions, a continuous period of 65 days should have
counted against the 70-day clock because Weidenburner purportedly had no contact
with his former lawyer during that period. The only authority Weidenburner cited for
that proposition is Vermont v. Brillon, which explains that, under the Sixth Amendment
(not the Speedy Trial Act), delay attributable to “systemic” dysfunction in a public-
defender system might be charged to the prosecution. 129 S. Ct. 1283, 1292–93 (2009).
There was no suggestion, though, of inaction by Weidenburner’s former appointed
counsel, let alone appointed lawyers system-wide. Weidenburner’s former attorney had
been granted a continuance shortly after his appointment to familiarize himself with the
case, see 18 U.S.C. § 3161(h)(7)(B)(iv), and during the 65-day period when Weidenburner
says he was ignored, the lawyer in fact moved dismiss the indictment on the ground
that Weidenburner’s constitutional right to a speedy trial had been violated. Thus, an
appellate claim premised on the Speedy Trial Act would be frivolous.
Counsel next discusses whether Weidenburner might argue that his statements
to Agents Hanisch and Mitchell were obtained in violation of the Fifth Amendment and
should have been suppressed. The district court understood Weidenburner to argue
that all his confessions should be suppressed because the initial, jailhouse interrogation
was not preceded by Miranda warnings and the later, noncustodial interviews were
induced by false promises from the agents that he would not be prosecuted in Illinois if
he helped their investigation. The government conceded that the confession obtained at
the Spencer County Jail was inadmissable because Weidenburner was subjected to
custodial interrogation without Miranda warnings. The government disputed, however,
No. 12-2579 Page 5
that false assurances of nonprosecution had been given Weidenburner, and after an
evidentiary hearing the district court concluded that Hanisch and Mitchell had said
only that they would make Weidenburner’s cooperation known to prosecuting
authorities. We agree with counsel that it would be frivolous to argue that such a
promise rendered Weidenburner’s confessions involuntary. See United States v.
Villalpando, 588 F.3d 1124, 1128–30 (7th Cir. 2009); United States v. Charles, 476 F.3d 492,
497 (7th Cir. 2007).
Trial counsel might have tried to distinguish this case from Oregon v. Elstad, 470
U.S. 298 (1985), and Missouri v. Seibert, 542 U.S. 600 (2004). In Elstad the Court held that,
though an initial confession obtained in violation of Miranda must be suppressed, the
admissibility of subsequent, warned confessions turns solely on whether they were
knowing and voluntary. 470 U.S. at 309–10. And in Siebert the Court clarified that the
“poisonous fruits” doctrine does not apply to violations of Miranda. 542 U.S. at 612 n.4.
In both of those cases, however, the police officers who conducted a custodial
interrogation without administering Miranda warnings gave those warnings before
questioning the defendant again after his release. Weidenburner’s later confessions
were not preceded by Miranda warnings, and trial counsel might have argued that these
confessions should have been suppressed as the delayed product of Weidenburner’s
initial, unwarned confession. See, e.g., Tawfeq Saleh v. Fleming, 512 F.3d 548, 553 (9th Cir.
2008) (Berzon, J., concurring); Collazo v. Estelle, 940 F.2d 411, 423 (9th Cir. 1991); United
States v. Gomez, 927 F.2d 1530, 1533, 1538–39 (11th Cir. 1991); Medeiros v. Shimoda, 889
F.2d 819, 826–31 (9th Cir. 1989) (Norris, J., dissenting). But whether this theory might
have been plausible, Weidenburner waived it by not raising it in his motion to suppress.
See FED. R. CRIM. P. 12(e); United States v. Clark, 657 F.3d 578, 582–83 (7th Cir. 2011);
United States v. Murdock, 491 F.3d 694, 698–99 (7th Cir. 2007).
In his Rule 51(b) response, Weidenburner takes a different route and contends
that his noncustodial statements should have been suppressed as fruits of his unwarned
jailhouse confession because Agents Hanisch and Mitchell also violated his Sixth
Amendment right to counsel in obtaining that confession. See Montejo v. Louisiana, 556
U.S. 778, 786 (2009). Neither did Weidenburner raise this argument in his motion to
suppress, and thus it too is waived. In any event, the Sixth Amendment is “offense
specific,” McNeil v. Wisconsin, 501 U.S. 171, 176 (1991), so if there was a violation, it
concerned only the charge that was pending in Indiana when Weidenburner was
questioned at the Spencer County Jail. That interrogation occurred almost twelve
months before Weidenburner was indicted in federal court. Although his Sixth
Amendment right to counsel had attached on the pending Indiana charge of attempted
No. 12-2579 Page 6
dealing in methamphetamine, Ind. Code §§ 35-41-5-1, 35-48-4-1.1, that right had not
attached for other crimes that are not the “same offense” under the test of Blockburger v.
United States, 284 U.S. 299, 304 (1932). See Texas v. Cobb, 532 U.S. 162, 165–66, 174 (2001)
(concluding that police did not violate Sixth Amendment right to counsel by
questioning suspect about murders committed during course of burglary even though
suspect already had been indicted for that burglary); United States v. Krueger, 415 F.3d
766, 775 (7th Cir. 2005) (explaining that factual connection to charged crime is not
enough to make uncharged crime the “same offense” for purposes of Sixth Amendment
right to counsel). Even if Weidenburner’s argument is not foreclosed because the
charges were brought by separate sovereigns, see Krueger, 415 F.3d at 775–78 (leaving
open whether dual sovereignty doctrine applies in Sixth Amendment context); United
States v. Alvarado, 440 F.3d 191, 198 (4th Cir. 2006) (applying dual sovereignty exception
in Sixth Amendment context); United States v. Coker, 433 F.3d 39, 44–47 (1st Cir. 2005)
(same); United States v. Mills, 412 F.3d 325, 330 (2d Cir. 2005) (concluding that dual
sovereignty doctrine does not apply in Sixth Amendment context), attempted dealing in
methamphetamine and conspiracy to distribute methamphetamine are not the same
offense under the Blockburger test. See Pinkerton v. United States, 328 U.S. 640, 643 (1946)
(explaining that commission of substantive offense and conspiracy to commit that
offense are district offenses); United States v. Mire, 725 F.3d 665, 678 (7th Cir. 2013)
(same); United States v. Williams, 720 F.3d 674, 692 (8th Cir. 2013) (concluding that, under
Blockburger test, possession of controlled substance with intent to distribute is distinct
from conspiracy to commit that crime).
Counsel also considers whether Weidenburner could challenge the sufficiency of
the evidence supporting his conspiracy conviction. Given the overwhelming evidence of
Weidenburner’s involvement in the drug conspiracy—including his confessions and the
testimony of his coconspirators—we agree with counsel that it would be frivolous to
argue that a rational jury could not have found him guilty beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 319 (1979).
As to Weidenburner’s conviction, counsel last evaluates whether the defendant
could argue that it was error to deny his postverdict motion for a new trial. That motion
was based on the government’s assertion that it could not locate copies of “proffer
letters” written to the lawyers for Barth and David Duffy, Jr., two of Weidenburner’s
codefendants who testified against him. These letters, which the government drafted
and the two codefendants acknowledged by initialing each paragraph, set the ground
rules for “off the record” interviews that could lead to favorable plea agreements.
Essentially prosecutors want to know what information a defendant possesses before
No. 12-2579 Page 7
bargaining for his cooperation. See United States v. Schuster, 706 F.3d 800, 804–05 (7th
Cir. 2013). The government could not locate copies of the letters sent to counsel for
Barth and Duffy, but neither witness disputed their existence, and Duffy even
confirmed that the letter sent to his lawyer was identical to a proffer agreement shown
to him for another testifying codefendant. And Weidenburner did receive copies of the
plea agreements executed by Barth and Duffy.
Weidenburner’s motion for a new trial was premised on his belief that disclosure
of the proffer letters was required by Giglio v. United States, 405 U.S. 150 (1972), or the
Jencks Act, 18 U.S.C. § 3500. In light of the record, a claim of nondisclosure would be
factually frivolous, but, more importantly, these letters are not Giglio material or Jencks
Act statements. Giglio requires disclosure of inducements for a witnesses’s testimony,
405 U.S. at 154–55; United States v. Morris, 498 F.3d 634, 640 (7th Cir. 2007), but the
prosecutor fulfilled that obligation by producing the plea agreements, which describe
the benefits Barth and Duffy would receive for cooperating, including by testifying. The
proffer letters were preliminary to the resulting plea agreements, and thus Giglio was
satisfied by disclosure of the plea agreements. See United States v. Santisteban, 501 F.3d
873, 880 (8th Cir. 2007) (concluding that government provided due process by
disclosing plea agreements that superceded proffer agreements); United States v.
Thornton, 197 F.3d 241, 253 (7th Cir. 1999) (explaining that proffer letters are “of scant
relevance at trial when a subsequent, superseding plea agreement has been reached”);
United States v. Quesada, 607 F.3d 1128, 1131–32 (6th Cir. 2010) (explaining that plea
agreements supercede proffer agreements); United States v. Davis, 393 F.3d 540, 546 (5th
Cir. 2004) (same).
Likewise the Jencks Act is irrelevant. The proffer letters were statements of the
prosecutor who wrote them; a proffer letter is not a“factual narrative” useful for
impeachment, see Goldberg v. United States, 425 U.S. 94, 114 (1976) (Stevens, J.,
concurring); United States v. Allen, 798 F.3d 985, 994 (7th Cir. 1986), and neither did trial
counsel explain how Barth and Duffy could be said to have adopted the prosecutor’s
statements merely by acknowledging having read the letters, See 18 U.S.C. § 3500(e)(1);
United States v. McGee, 408 F.3d 966, 973 (7th Cir. 2005).
Turning to Weidenburner’s sentence, counsel considers only whether
Weidenburner could argue that the term of imprisonment is unreasonable. But the term
is within the calculated guidelines range and thus is presumed reasonable. See Rita v.
United States, 551 U.S. 338, 347 (2007); United States v. Baker, 655 F.3d 677, 683 (7th Cir.
2011). Counsel has not identified any factor that would overcome that presumption, nor
No. 12-2579 Page 8
have we. The district court took into account the sentencing factors in 18 U.S.C.
§ 3553(a), acknowledging that, given Weidenburner’s age, the 360-month term is the
practical equivalent of a life sentence but emphasizing that Weidenburner had engaged
in a “lifetime of crime”and refused to take responsibility for his actions.
Weidenburner, however, contends that his prison sentence violates the Sixth
Amendment because not all the facts compelling a 20-year statutory minimum were
found by the jury beyond a reasonable doubt. See Alleyne v. United States, 133 S. Ct. 2151,
2158 (2013). That minimum applied because the conspiracy involved at least 500 grams
of a mixture containing methamphetamine and because Weidenburner already had a
conviction for a felony drug offense. See 21 U.S.C. §§ 841(b)(1)(A)(viii), 851. But the jury,
in fact, made a special finding that the conspiracy involved 500 grams or more of a
mixture containing methamphetamine, cf. United States v. Claybrooks, 729 F.3d 699, 708
(7th Cir. 2013), and Alleyne does not change the longstanding rule that the fact of a prior
conviction need not be alleged in the indictment or proved to a jury beyond a
reasonable doubt, see Alleyne, 133 S. Ct. at 2160 n.1; Almendarez–Torres v. United States,
523 U.S. 224, 239 (1998).
Counsel and Weidenburner could have, but did not, consider the relevance of
Peugh v. United States, 133 S. Ct. 2072, 2084 (2013), which holds that using a version of
the guidelines promulgated after the defendant committed his crime violates the
Ex Post Facto Clause if the newer version yields a higher imprisonment range.
Weidenburner’s conspiracy ended in 2002, yet the district court applied the 2011 version
of the guidelines. Under the newer version, two of Weidenburner’s convictions (one for
possession with intent to distribute methamphetamine and another for money
laundering) counted separately because the sentences did not result from offenses
contained in the same charging instrument and were imposed on different days.
See U.S.S.G. § 4A1.2(a)(2) (2011). Under the 2002 version of § 4A1.2(a)(2), however, those
offenses might have been deemed related, and thus counted together instead of
separately, because they arguably were part of a “common scheme or plan.”
See U.S.S.G. § 4A1.2 cmt. n.3 (2002); United States v. Brown, 209 F.3d 1020, 1023–24 (7th
Cir. 2000). Counting the convictions separately resulted in a criminal history category of
III rather than II. But given Weidenburner’s offense level, his guidelines range would
remain 360 months to life, and thus the district court did not run afoul of Peugh.
See United States v. Stokes, 726 F.3d 880, 898–99 (7th Cir. 2013).
Counsel last considers arguing that Weidenburner’s trial lawyers provided
ineffective assistance. Yet appellate counsel does not identify any shortcoming on which
No. 12-2579 Page 9
to premise a claim of ineffective assistance. Moreover, counsel is correct that claims of
ineffective assistance are best raised in a collateral attack where the record can be
developed. See Massaro v. United States, 538 U.S. 500, 504–05 (2003); United States v.
Harris, 394 F.3d 543, 557–58 (7th Cir. 2005).
We GRANT counsel’s motion to withdraw and DISMISS the appeal.