United States v. Weidenburner
| Decision Date | 04 November 2013 |
| Docket Number | No. 12-2579,12-2579 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DONALD LEE WEIDENBURNER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District
Court for the Southern District of Illinois.
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).
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 amonth 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 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) (); United States v. Arceo, 535 F.3d 679, 684-86 (7th Cir. 2008) (); United States v. Mitchell, 957 F.2d 465, 469 (7th Cir. 1992) (). 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,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. 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,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...
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