United States v. Berg

Decision Date09 April 2013
Docket NumberNo. 12–2118.,12–2118.
Citation714 F.3d 490
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Jeremiah S. BERG, Defendant–Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

OPINION TEXT STARTS HERE

Timothy W. Funnell, Attorney, Office of the United States Attorney, Green Bay, WI, for PlaintiffAppellee.

Martin J. Pruhs, Attorney, Pruhs & Donovan, S.C., Milwaukee, WI, for DefendantAppellant.

Before KANNE, WOOD, and SYKES, Circuit Judges.

KANNE, Circuit Judge.

Jeremiah S. Berg ran a cross-border smuggling scheme that traded American arms for Canadian cannabis. Later, he supplied several bags of cocaine to a dealer who unwittingly resold them to a government agent. On July 16, 2010, Berg confessed to both sets of crimes. Berg apparently hoped that his cooperation would win him leniency. Instead, the government took Berg to trial, and a jury convicted him. Berg now appeals, arguing that his two sets of crimes were improperly tried in one case and that he was denied the opportunity to call an exculpatory witness. We disagree and affirm.

I. Background

Jeremiah S. Berg first came to the attention of law enforcement in March 2008. The federal Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) was investigating two illegal gun dealers: Catherine and Juan Elizondo. After the ATF executed a search warrant on the Elizondos' house, the Elizondos agreed to help gather evidence about their customers. Berg happened to be one of them. Between April and October 2008, Berg met with the Elizondos and an undercover ATF agent several times. Berg expressed interest in buying more guns, although he and the Elizondos never actually consummated another sale. The Elizondos also linked Berg with two guns that were later recovered by Canadian law enforcement. However, for reasons that are not entirely clear, the ATF did not immediately follow up on Berg's case.

More than a year later, in April 2010, Berg attracted the attention of the Brown County, Wisconsin, Drug Task Force (“WDTF”). An undercover informant, Russell LaRock, arranged to buy cocaine from Roland Peynetsa. Berg, it turns out, was Peynetsa's source—whenever LaRock asked Peynetsa for cocaine, Peynetsa would call Berg, and Berg would supply it. On three different days in April and May 2010, law enforcement observed Berg supply about fifty grams of cocaine to Peynetsa, who then resold it to LaRock. LaRock was later caught trying to steal $20 in WDTF buy money, and the WDTF terminated their cooperation with him in late May 2010. On June 22, 2010, the WDTF arrested Peynetsa. The following day, they arrested Berg as well.

After his June 23, 2010 arrest, Berg waived his Miranda rights and started talking. Berg admitted to being a regular cocaine dealer and to having sold cocaine to Peynetsa. Berg also said that, before moving into the cocaine racket, he had sold high-grade Canadian marijuana. Berg was released after agreeing to cooperate with the WDTF. He later provided some help to WDTF investigators, including participation in a controlled drug buy from one of his suppliers. By July 16, 2010, federal agents at the ATF had become aware of Berg's arrest and arranged for a non-custodial interview. During the interview, Berg explained how he had traded guns for Canadian marijuana in the past. After the interview, Berg agreed to continue working with WDTF. A few weeks later, Berg broke off contact with law enforcement and absconded from his state-law probation. A warrant was issued for his arrest, and he was finally apprehended on September 2, 2010.

On October 13, 2010, a federal grand jury indicted Berg on six counts: conspiracy to distribute marijuana; use of firearms to further a marijuana conspiracy; possession of a firearm by a felon; and three counts of conspiring to distribute cocaine. All of the charges were tried together in this case. At trial, Berg claimed that his confessions were false and that he was innocent of all of the charges. He had only admitted otherwise, he claimed, because he was afraid of prosecution and wanted the agents to think he would be valuable as a confidential source. The jury disbelieved Berg and convicted him on all six counts. He now appeals, arguing that (1) his gun and marijuana charges should have been severed from his cocaine charges; and, (2) the district court violated his Sixth Amendment rights by failing to call Peynetsa during trial.

II. Analysis
A. Consolidation of Berg's Charges in One Trial

Berg first claims that his marijuana trafficking counts and his cocaine trafficking counts should have been tried separately. Because the jury heard both sets of charges at the same time, Berg argues, it may have inferred he was guilty because he had a propensity to commit crimes and not because of the strength of the evidence. As with any severance claim, this claim necessarily contains two distinct issues. See United States v. Windom, 19 F.3d 1190, 1196 (7th Cir.1994). The first is joinder—whether the two sets of charges had enough in common to be tried in the same case. Id. The second is severance—whether, despite being properly joined, the two sets of charges nevertheless should have been tried separately to avoid undue prejudice. Id.

Berg did not raise either issue before or during trial. Instead, he raised both for the first time after trial in a motion for a new trial under Federal Rule of Criminal Procedure 33. As a result, the issues are forfeited.1 Recognizing this problem, Berg asks us to review his arguments for plain error, or, in the alternative, to hold that his trial counsel was unconstitutionally ineffective for failing to raise the arguments. To succeed under plain error review, Berg must show that (1) there was an error; (2) the error was plain; and, (3) the error affected his substantial rights. See United States v. Doyle, 693 F.3d 769, 771 (7th Cir.2012). Alternatively, to show that his counsel was ineffective, Berg must demonstrate that (1) his counsel was objectively unreasonable for not moving to sever the charges; and, (2) Berg was prejudiced as a result. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

1. Joinder

Federal Rule of Criminal Procedure 8(a) provides that multiple offenses may be joined “if the offenses charged—whether felonies or misdemeanors or both—are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.” We interpret this rule broadly and “allow liberal joinder in order to enhance judicial efficiency.” United States v. Nettles, 476 F.3d 508, 516 (7th Cir.2007). “Further, in assessing whether joinder was proper, we look solely to the face of the indictment and not to the evidence adduced later at trial.” United States v. Lanas, 324 F.3d 894, 899 (7th Cir.2003).

Here, the government argues that the two sets of offenses—three of which related to marijuana trafficking and three of which related to cocaine trafficking—were properly joined because they were “of the same or similar character.” (Appellee's Br. at 22.) We agree. The “same or similar character” requirement is a “clear directive to compare the offenses charged for categorical, not evidentiary, similarities.” United States v. Alexander, 135 F.3d 470, 476 (7th Cir.1998); accord United States v. Jackson, 208 F.3d 633, 638 (7th Cir.2000). Here, Counts 1–3 of the indictment all related to a scheme to distribute marijuana, and Counts 4–6 all related to a scheme to distribute cocaine. We think that these charges—all of which involved drug dealing—were of the same general category of offense and therefore were “of the same or similar character” to each other. See Windom, 19 F.3d at 1196 (possession of heroin with intent to distribute and possession of cocaine with intent to distribute are offenses of “same or similar character”); cf. United States v. Janus Indus., 48 F.3d 1548, 1557 (10th Cir.1995) (manufacturing marijuana and distributing drug paraphernalia are of “same or similar character” because both violate the Drug Abuse Prevention and Control Act); United States v. Fortenberry, 919 F.2d 923, 926 (5th Cir.1990) (opinion denying petition for rehearing) (transportation of an undeclared firearm on a commercial airliner and possession of an unregistered firearm are of “same or similar character” because they are both weapons violations).

Berg counters that his two sets of offenses were not of a similar character because (1) they involved different types of drugs; (2) they happened too far apart in time; (3) they involved some non-overlapping evidence; and, (4) one set of offenses involved firearms and the other did not. But Rule 8(a) does not require that joined offenses be “temporally or evidentially related”; all it requires is that they be “of like class.” Alexander, 135 F.3d at 476;see also United States v. Gooch, 665 F.3d 1318, 1335 (D.C.Cir.2012) (Rule 8(a) permits the joinder of offenses of the same or similar character, even if they are entirely unrelated to each other” as a factual matter) (internal quotation marks omitted). Here, the fact that both crimes involved drug dealing suffices to make them of like class.

As for the factual differences between the marijuana charges and the cocaine charges, those differences inform whether the charges should have been severed because of undue prejudice (a question we will turn to in a moment). But they do not mean the charges were not of the same or similar character. Thus, Berg's marijuana and cocaine trafficking offenses were properly joined. And, because it was not error for the cases to be joined, there was not plain error either, and Berg's attorney was not ineffective for failing to object to the joinder. See United States v. Persfull, 660 F.3d 286, 296 (7th Cir.2011) (where there was no error, neither an ineffective assistance claim nor a plain error claim will lie).

2. Severance

That brings us to our next question: whether, despite...

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