U.S.A. v. Meyer, 99-1919

• Decision Date: 04 December 2000
• Docket Number: No. 99-1919,99-1919
• Citation: 234 F.3d 319
• Parties: (7th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ERIC R. MEYER, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 319

234 F.3d 319 (7th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ERIC R. MEYER, Defendant-Appellant.

No. 99-1919

In the United States Court of Appeals For the Seventh Circuit

ARGUED NOVEMBER 12, 1999

DECIDED DECEMBER 4, 2000

Appeal from the United States District Court for the Western District of Wisconsin. No. 96 CR 10--John C. Shabaz, Chief Judge.

Before FLAUM, Chief Judge, and RIPPLE and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

Two years ago, this court reversed Eric Meyer's conviction for conspiracy to distribute a controlled substance and granted him a new trial based on an instructional error. United States v. Meyer, 157 F.3d 1067 (7th Cir. 1998), cert. denied, 526 U.S. 1070, 119 S. Ct. 1465 (1999). A second jury convicted him again on the conspiracy charge. In this appeal, Meyer argues that his trial counsel was ineffective for failing to ask for a mistrial, or in the alternative, a cautionary instruction, after a witness alluded to "murder cases," that the evidence was insufficient to support the district court's sentencing determination that he committed a murder in the course of the drug conspiracy, and that the court violated his due process rights when it cross-referenced the murder guideline. We affirm.

I.

We assume familiarity with our opinion in the previous appeal and confine our discussion of the facts to those most pertinent to the issues Meyer has raised. From 1991 until 1995, Meyer participated in a narcotics distribution conspiracy whose members included his co-defendant, Gordon Hoff, Sr. ("Hoff") and Hoff's son, Gordon Hoff, Jr., known to his associates as "Rock." At the outset of the conspiracy, Hoff supplied both Rock and Meyer with cocaine (and marijuana) for resale to others. Rock developed his own sources of cocaine, however, and at times was able to buy it at prices lower than his father offered him. Indeed, on occasion Rock supplied Hoff with cocaine rather than the other way around. Eventually, in or around August of 1993, Hoff ceded Meyer as a customer to Rock in exchange for a Harley-Davidson motorcycle that Rock had taken from a friend in an insurance scam. Thereafter, Meyer obtained his narcotics on an almost daily basis from Rock (often on credit). On occasion, he lent a hand when Rock, Hoff, or one of their associates needed assistance with transporting cocaine, collecting drug debts, and like tasks.

Dennis Fenner, Hoff's source for marijuana, was one of several people who were murdered in the course of the conspiracy. In the immediate wake of his indictment late in 1995, Hoff, who was cooperating with the authorities in exchange for immunity, said that he suspected Rock of the murder. But investigators later concluded that Meyer had killed Fenner, at Hoff's behest.

At a pre-trial evidentiary hearing in 1996, Rock indicated that in 1994, Hoff (who had recently had a search warrant executed on his property) wanted Fenner killed for fear that he might expose Hoff and his co-conspirators to the police. Rock testified that Hoff arranged a meeting with Fenner at Rock's farm near Osseo, Wisconsin in the middle of one night in late April 1994, and Hoff asked Rock to drive Meyer to that meeting. Rock did so, and he noticed that Meyer had a nine-millimeter Smith & Wesson handgun with him that had once belonged to Rock. Rock and Meyer arrived at the farm first. After giving Meyer a brief tour of an abandoned house on the property, the two men returned outdoors. Rock walked around to the back of the house to relieve himself. While he was so engaged, Rock heard an automobile come up the drive toward the house; he then heard two car doors slam shut, and a moment later he heard several gunshots. When he walked out from behind the house, Rock saw Fenner's body on the ground. Meyer was standing approximately five feet away with a gun in his hand and Hoff, who was standing next to Meyer, was congratulating Meyer, saying that "it had to be done." R. 116 at 42. Rock testified that he helped the other two men burn Fenner's body over a period of six hours and dispose of some of the ashes in a creek. The three of them then left together in Rock's 1976 Chevrolet Blazer. Hoff later killed Fenner's dog in order to avert suspicion that Fenner had been the victim of foul play. R. 116 at 45, R. 195 at 39.

At Meyer's first sentencing hearing in December 1996, Rock again testified on the subject of Fenner's murder. At that time he added that Hoff had given Meyer a motorcycle because Meyer had killed Fenner. R. 195 at 38, 42.

Rock was by no means a witness of unimpeachable virtue. Aside from having helped Hoff and Meyer (at the least) to dispose of Fenner's body, Rock admitted that he had killed another individual, Kirk Larson, and that he was serving a twenty-year prison term for that murder. R. 195 at 65.¹ Rock told the authorities that he killed Larson because Larson had an affair with Carole Tenney. R. 116 at 52-53. (At the time of the Larson murder Tenney was Rock's girlfriend; by the time that the pre- trial evidentiary hearing took place, she was Rock's wife.) Rock acknowledged, however, that his father claimed Rock had killed Larson because he was concerned that Larson might expose his drug-dealing (R. 116 at 51; id. at 71); and Rock agreed that he would have received a more severe sentence for the murder if his father's version were accurate (R. 116 at 53). Tenney, in fact, denied having had an affair with Larson. R. 116 at 93. Rock also acknowledged that his father had turned him in for murder and drug- dealing, and that he did not begin to cooperate with the authorities until Hoff and Meyer had already implicated him in the drug conspiracy. R. 315 at 70-71. Moreover, after Rock pleaded guilty to the federal conspiracy charge, he received a sentence of only ten years, as compared to the life terms that Hoff and Meyer eventually received. Rock also admitted that he owned and had "paged through" books that described how to kill someone silently, how to dispose of bodies, and how to be a hit man. R. 315 at 77. He admitted that he did not like Fenner. "He was a prick," Rock testified. R. 195 at 66. He admitted as well that he owned a nine-millimeter handgun and that he had threatened to kill another individual with that gun at the Osseo farm, where of course Fenner was slain. R. 195 at 67-68. Indeed, Rock admitted that after he killed Kirk Larson, he killed Larson's dog--just as Hoff, according to Rock, had killed Fenner's dog after Meyer killed Fenner. R. 195 at 66. Two prisoners who testified on Meyer's behalf at his first sentencing hearing reported that Rock had claimed responsibility for multiple murders (although not specifically Fenner's). R. 195 at 228-29, 240, 242-43. Judge Crabb described Rock as "a seriously disturbed, violent young man[.]" R. 198 at 187. For his part, Rock's father (Hoff) testified that Rock's account of the Fenner killing was a "total lie". R. 198 at 25.

Carole Tenney Hoff ("Tenney") also testified at the August 1996 evidentiary hearing, and again at Meyer's first and second sentencing hearings. She was not yet married to Rock in April of 1994, but she was living with him. She recalled hearing Hoff tell his son, several days before Fenner disappeared, that Fenner had been talking to the police and could not be trusted. Tenney also recalled that Hoff and Meyer had visited their home on the night before Fenner's disappearance. Although she was in another room of the house, Tenney said that given the volume with which Hoff and Meyer were speaking, she was able to hear bits and pieces of the conversation that they had with Rock that night: "they were just kind of raving." R. 116 at 88. In particular, she claims to have heard Hoff and Meyer say that "they weren't going to have to worry about [Fenner] anymore, and he wasn't going to be talking to anybody." R. 116 at 88. On the following morning, Tenney awoke to find Rock gone from the house. Later that same morning, as she was driving to a class in Eau Claire, she saw Hoff, Rock, and Meyer together in the Blazer. Either that same day or several days later (Tenney wasn't sure which), she asked Rock whether Meyer had shot Fenner. Rock look surprised and purportedly replied, "I don't know. I don't know what you're talking about." R. 116 at 89.

Tenney's testimony had its vulnerable points as well. First, although Tenney attributed to Hoff and/or Meyer the remark that they wouldn't have to worry about Fenner much longer (R. 116 at 87- 88), she admitted on cross-examination that it could have been Rock who made that remark (R. 116 at 99). Second, although Tenney claimed to have seen Hoff, Rock, and Meyer together in Rock's Blazer on the morning of Fenner's disappearance, she placed them on a different highway, seated somewhat differently in the Blazer, than Rock did in his own testimony. Compare R. 116 at 80-81 (Rock), with id. at 102-03, 107-08, and R. 318 at 41-43 (Tenney). Third, Tenney could offer no explanation for having asked Rock whether Meyer had killed Fenner. "I just said it. It was really strange actually. I just said it. . . . I really had no reason to think that Eric would do anything like that. I don't even know where it came from." R. 116 at 108. Indeed, she acknowledged that she had never seen Meyer with a gun, although she had seen Rock with a nine- millimeter handgun. R. 116 at 109. Finally, Tenney admitted that she previously had lied and withheld information from the police in order to protect herself and Rock (R. 116 at 92, 104); she also admitted that she had falsely notarized a quitclaim deed for Hoff in the wake of Fenner's murder so that Hoff could take possession of Fenner's property (R. 116 at 103-04, 105). FBI Agent Charles Southworth would later confirm that Tenney had "lied on a few occasions" (R. 198 at 69) and in several instances had changed her statements to the government after being warned that she could be prosecuted (R. 198 at 68-70).

Chance...