U.S. v. Polland, 92-1702

• Decision Date: 29 July 1993
• Docket Number: No. 92-1702,92-1702
• Citation: 994 F.2d 1262
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marc L. POLLAND, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1262

994 F.2d 1262

UNITED STATES of America, Plaintiff-Appellee, v. Marc L. POLLAND, Defendant-Appellant.

No. 92-1702.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 3, 1992.

Decided May 28, 1993.

Rehearing and Rehearing In Banc Denied

July 29, 1993.

Rodney Cubbie (argued) Office of U.S. Atty., Milwaukee, WI, for plaintiff-appellee.

Ann Auberry, Milwaukee, WI, Thomas G. Halloran, Fox & Fox, Madison, WI, Michael R. Barth, Burlington, WI, for defendant-appellant.

Before FLAUM and ROVNER, Circuit Judges, and LAY, Senior Circuit Judge. ^*

FLAUM, Circuit Judge.

Khalil Muhammad was arrested at his apartment at 3885 North Sherman Boulevard in Milwaukee, Wisconsin on June 22, 1989. Marc Polland, an attorney and a personal friend of Muhammad's, heard of his arrest and went to see him at the U.S. Marshall's Office at the federal courthouse. During that meeting, Muhammad told Polland that approximately two kilograms of cocaine were concealed in a milk chute in the downstairs hallway of the apartment building. Muhammad asked Polland to retrieve the cocaine and turn it over to Michael Johnson, who had started selling cocaine for Muhammad in the spring of 1988. Polland responded that Johnson was not someone who could be trusted, and before the two parted, Polland indicated that he would not turn any of the cocaine over to Johnson.

That same day, Muhammad's landlord Richard Hackbarth received a phone call from an acquaintance who wanted to come by and get into the milk chute. After this phone call, Hackbarth, who had been introduced to Polland several months prior to Muhammad's arrest and had noticed Polland visiting Muhammad on a number of occasions afterward, called Polland and reported that he had "a real problem." Polland went to the building after visiting Muhammad at the federal courthouse and planned with Hackbarth for the removal of the cocaine from the milk chute. According to Hackbarth, there were three plastic bags of cocaine inside. Polland arranged to have James "Sonny" Harrison retrieve the cocaine that evening.

Polland later told Muhammad that he had possession of the two kilograms of cocaine. Apparently believing that he would be released, Muhammad decided to allow Polland to keep the cocaine. In fact, Harrison kept actual possession of the cocaine at first. Periodically, Harrison received instructions from Polland to deliver a "document"--a half-ounce or an ounce of cocaine. Harrison himself also sold approximately eight ounces of the cocaine for his own personal gain. Eventually, Polland demanded and received the remaining cocaine, which amounted to a little over a kilogram. Polland contends that he consumed a "tennis ball" size portion of cocaine and destroyed the remainder.

In November, 1989, Muhammad was convicted. After his conviction, Muhammad instructed Johnson to get the cocaine from Polland and sell it to raise money. Between November of 1989 and January of 1990, Polland dealt a total of six ounces of cocaine to Johnson in five deliveries. Eventually, Polland and Johnson had a falling out over the price of the cocaine. Polland also told Johnson not to tell Muhammad anything about their drug transactions because Muhammad talked too much.

Muhammad did talk, and among those he fingered was Polland. Prior to this, Muhammad, while away from Polland, had handed the Assistant United States Attorney a folded piece of paper after a final pretrial conference for Muhammad and had requested that it be passed along to the Deputy United States Attorney. The paper contained a diagram of a "hypothetical operation." Determining that the paper was not in and of itself significant, the government did not disclose it to Polland. After Muhammad's conviction, the government obtained a grant of immunity for him and had him testify before the grand jury. In his testimony, Muhammad implicated Polland in cocaine distribution. After a jury trial, Polland was convicted of conspiracy to possess with intent to distribute cocaine and possession with intent to distribute. With enhancements for obstruction of justice and abuse of trust, Polland's sentence totaled 121 months. He appeals.

I.

A.

Polland has raised a number of issues on appeal, only some of which merit discussion. He alleges first that the government engaged in widespread misconduct throughout the investigation and trial of this case. In particular, Polland challenges the prosecutor's acceptance of the diagram of the hypothetical operation from Muhammad without any disclosure to Polland, who was acting as Muhammad's attorney. According to Polland, the government's conduct violated Federal Rules of Criminal Procedure 16(a)(1)(A) as well as the duty to notify the court and Polland himself of the conflict. The principal flaw in this argument is that any right violated belongs to Muhammad, not Polland. He has no standing to assert Muhammad's rights. In addition, Polland cannot identify any prejudice to him on account of the nondisclosure. Certainly, the government is under no obligation to inform suspects that they may be under investigation.

B.

Polland also argues that the trial court erred by denying his motion for an evidentiary hearing to determine whether the indictment should have been dismissed for prosecutorial misconduct or vindictive prosecution. A prosecution is vindictive and a violation of due process if undertaken "[t]o punish a person because he has done what the law plainly allows him to do." United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 2488, 73 L.Ed.2d 74 (1982). The filing of an indictment may in some instances be the basis for such a claim. See United States v. Napue, 834 F.2d 1311, 1329 (7th Cir.1987). Whether to hold an evidentiary hearing is a matter within the court's discretion. United States v. Valona, 834 F.2d 1334, 1340 (7th Cir.1987). A trial court is not required to conduct an evidentiary hearing on a claim of prosecutorial misconduct unless a substantial right of the defendant has been put in jeopardy. See United States v. Wilson, 715 F.2d 1164, 1169 (7th Cir.), cert. denied, 464 U.S. 986, 104 S.Ct. 434, 78 L.Ed.2d 366 (1983). The court should grant an evidentiary hearing on the issue of vindictive prosecution only when a defendant has offered sufficient evidence to raise a reasonable doubt about the propriety of the government's conduct. See United States v. Heidecke, 900 F.2d 1155, 1160 (7th Cir.1990).

Polland contends that an evidentiary hearing was warranted for a couple of reasons. First, Polland thinks that his prosecution stems in part from a letter he submitted to the United States Attorney for the Eastern District of Wisconsin complaining about the conduct of the Drug Enforcement Administration. Second, he believes that a hearing would clear up whether Muhammad had been put up to implicating Polland in the cocaine distribution scheme. Polland offered no other facts to the trial court to support his motion for a hearing.

Neither of these reasons offered by Polland amounts to a showing of actual vindictiveness. In his capacity as an attorney, Polland complained of alleged D.E.A. improprieties against his clients. However, he has not shown a nexus between these incidents and his own subsequent indictment. In addition, Polland has not established any factual basis for his allegation of government intervention or misconduct in the production of the hypothetical operation diagram. The district court's decision not to hold an evidentiary hearing was not in error.

C.

A third claim advanced by Polland is that the government's failure to disclose exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Withholding evidence constitutes a Brady violation only if it is both favorable to the accused and material. United States v. Douglas, 874 F.2d 1145, 1163-64 (7th Cir.), cert. denied, 493 U.S. 841, 110 S.Ct. 126, 107 L.Ed.2d 87 (1989). Evidence is material "only if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Dweck, 913 F.2d 365, 371 (7th Cir.1990) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985)).

During pretrial, Polland had requested the disclosure of evidence of his non-involvement in drug distribution. It was only in the course of the cross-examination of F.B.I. Agent Plambeck that the defense learned that the D.E.A. may have attempted to make a controlled buy from Polland several years earlier. This evidence is not favorable to Polland. If anything, it reflects the fact that the D.E.A. harbored suspicions about Polland's conduct, which is more inculpatory than exculpatory. The evidence is also not material. No reasonable probability exists that this evidence would have been sufficient to rebut the direct evidence of Polland's conduct in the present case.

Polland similarly argues that the government failed to disclose a preindictment interview with one of its witnesses. At the outset of a conversation with Agent Plambeck, Michael Johnson, a witness, appeared to be withholding information. The prosecutor and Plambeck allowed him to talk with Muhammad by phone. After the unmonitored phone call, Johnson was more cooperative. Polland contends that this episode constituted Brady material, and the government's failure to disclose it represented bad faith, if not animus. However, it is not clear that this information was favorable to Polland. See Douglas, 874 F.2d at 1163. Although the defense may have relied on it to impeach Johnson, it had ample opportunity to explore the relationship between Muhammad and Johnson, including their phone conversations, and impeach Johnson during his cross-examination. (Tr. 279-83, 301-02). Moreover, Agent Plambeck did not say or suggest that Johnson was lying or...