United States v. Westmoreland

• Decision Date: 25 March 2013
• Docket Number: No. 10–3961.,10–3961.
• Citation: 712 F.3d 1066
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Guy J. WESTMORELAND, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

712 F.3d 1066

UNITED STATES of America, Plaintiff–Appellee,

v.Guy J. WESTMORELAND, Defendant–Appellant.

No. 10–3961.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 12, 2012.

Decided March 25, 2013.

Thomas E. Leggans, Attorney, Office of the United States Attorney, Benton, IL, for Plaintiff–Appellee.

Veronica N. Berger, Attorney, Mayer Brown, LLP, Washington, DC, for Defendant–Appellant.

Before KANNE, TINDER, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Over a decade ago, defendant Guy Westmoreland was convicted in two trials, in the first for conspiracy to distribute a controlled substance, and in the second for five additional counts stemming from the murder of the wife of his partner in drug-dealing: causing the death of a person through the use of a firearm during a drug trafficking crime; using interstate commerce facilities to commit murder for hire; conspiring to commit murder for hire; tampering with a witness by committing murder; and causing the death of a witness through use of a firearm. His convictions were affirmed on appeal. See United States v. Westmoreland, 240 F.3d 618 (7th Cir.2001)( “Westmoreland I ”)(drug conspiracy conviction); United States v. Westmoreland, 312 F.3d 302 (7th Cir.2002) (“Westmoreland II ”)(murder-related convictions).

After he was convicted in the murder case, and while his appeal from those convictions was pending in Westmoreland II, Westmoreland filed a motion for new trial under Federal Rule of Criminal Procedure 33. The motion argued that the government's supposedly outrageous conduct violated his right to due process of law and that a new trial on his murder convictions was warranted because of newly discovered evidence. He filed his motion on October 4, 2002. Other than granting the government an extension of time for its response, the district court took no action on Westmoreland's motion for several years. In the meantime, Westmoreland requested the appointment of counsel and complained to the district court about the delay. The district court ultimately denied his motion on December 13, 2010, more than eight years after it was filed. United States v. Westmoreland, 2010 WL 5141770 (S.D.Ill.Dec.13, 2010). Westmoreland appeals.

We review the denial of a motion for a new trial for an abuse of discretion. United States v. Boender, 649 F.3d 650, 654 (7th Cir.2011). “The district court abuses its discretion when it makes an error of law or when it makes a clearly erroneous finding of fact.” United States v. Freeman, 650 F.3d 673, 678–79 (7th Cir.2011). Westmoreland also argues that the district court's delay and its refusal to appoint counsel violated his Sixth Amendment rights, and we review those claims de novo. United States v. Foster, 701 F.3d 1142, 1150 (7th Cir.2012)(“We ‘review de novo a district court ruling that affects a defendant's Sixth Amendment rights.’ ”), quoting United States v. Nettles, 476 F.3d 508, 517 (7th Cir.2007). Though we are troubled, to say the least, by the district court's unexplained eight-year delay in ruling, Westmoreland's arguments on the merits do not warrant overturning his convictions or ordering a new trial. The district court did not abuse its discretion in denying a new trial, and it correctly found that his constitutional rights were not violated. We affirm.

I. Factual and Procedural Background

A brief background of Westmoreland and his crimes will serve to frame this case. Additional chilling details are available in Westmoreland I and II. In 1997 and 1998, Westmoreland and Richard Abeln were partners in a drug distribution operation. Using Abeln's airplane, the pair imported nine kilograms of cocaine and about ninety pounds of marijuana from Texas to a small airport in Illinois. In late 1997, Abeln wanted to end his marriage but did not want to split his assets with his wife through a divorce. Instead, he decided to have her killed. Westmoreland had previously mentioned to Abeln that he could have someone killed for $1,000. Based on that comment, Abeln asked Westmoreland about the possibility of killing his wife. Initially, Westmoreland declined. Then, to persuade him to take the job, Abeln told Westmoreland (falsely) that his wife had discovered their drug trafficking business and was going to inform law enforcement. Westmoreland changed his mind and began making arrangements.

Westmoreland recruited Deandre Lewis to commit the murder. Abeln and Westmoreland agreed that the murder would occur on December 27, 1997, at a local airport and that it would be staged as a robbery gone bad. Lewis drove to the scene in a pick-up truck provided by Westmoreland. Abeln drove his wife to the location in the family car. The couple's twelve-year-old son was also in the car. While the Abeln family was there, Lewis approached their car and demanded Mrs. Abeln's jewelry. He pulled her from the car and shot her with two rounds from a double-barreled shot-gun. She died at the scene.

At the time of the murder, Westmoreland was on vacation with his family in Florida to establish an alibi. When he returned, however, he helped Lewis dispose of Mrs. Abeln's jewelry. He also remained in regular contact with Abeln as the investigation began, advising Abeln about how to mislead the police. In spite of those efforts, the “robbery gone bad” scenario fell apart quickly under police scrutiny. The investigation soon led to Westmoreland. He was arrested on January 6, 1998. He was convicted on August 20, 1998 of the drug conspiracy and on June 28, 2001 of crimes related to the murder. The district court sentenced Westmoreland to 240 months on the drug conspiracy charge and life imprisonment on the murder-related charges, to be served concurrently.

II. Due Process

Westmoreland's opening argument in this appeal is that certain conduct by the government was so outrageous that his convictions should be vacated and the charges against him dismissed on due process grounds. Though the facts presented are certainly unusual, his legal argument is not persuasive. After Westmoreland was convicted of the drug charge in Westmoreland I, but before he was tried for the murder charges in Westmoreland II, the government learned that one of the lead investigating agents, an Illinois State Police agent named Martin Milkovich, had engaged in a sexual affair with Westmoreland's wife, Bronnie. Initial indications were that the affair began while the case against Westmoreland was building and lasted several months. Upon discovering the affair, the federal government dropped its efforts to seek the death penalty against Westmoreland and Lewis. The government did not call Milkovich as a witness in Westmoreland's second trial, though Bronnie Westmoreland did testify. When questioned about the affair with Milkovich, she testified that the affair lasted from November 1999 until April 2000.

There is no question that the affair tainted Milkovich. In a separate investigation, the Illinois State Police interviewed Assistant United States Attorney Kit Morrissey, one of the government's lead prosecutors, concerning the affair. Morrissey said that it would have been “important” for him to know that Milkovich had established a sexual relationship with Bronnie:

because of the obvious damage to the case that that could cause. That would have been something we would have had to disclose, which we did when we did find out about it. And it would also have been—obviously, it would have told me that neither of them can be trusted, and that—I mean, it would affect my case in every aspect.

Until the affair was discovered, Morrissey explained, Milkovich had been an important government witness who was “central to the investigation.” The Illinois State Police ultimately issued a formal complaint against Milkovich and his employment was terminated.

Westmoreland argues that Milkovich's affair with Bronnie Westmoreland was so outrageous that it infected the entire government investigation and prosecution, denying him due process of law. The argument is based on a dictum in United States v. Russell, 411 U.S. 423, 431–32, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), in which the Supreme Court rejected an entrapment defense in an early methamphetamine case. Writing for the Court, then-Justice Rehnquist speculated that the Court “may some day be presented” with conduct by government agents so outrageous that it should bar the government from prosecuting at all. In Russell itself, a government agent had provided one ingredient for the drug that was difficult but not impossible to obtain. That was not so outrageous as to bar the prosecution, and the Supreme Court has not found such a bar in any other cases it has decided.

Russell offers no real guidance to lower courts as to the type or level of conduct by the government that might, standing alone, amount to a due process violation, though the dictum has been the focus of arguments by a number of defendants in the lower federal courts. Without such guidance from the Supreme Court, our court has disallowed such a defense in this circuit. See United States v. Stallworth, 656 F.3d 721, 730 (7th Cir.2011), citing United States v. White, 519 F.3d 342, 346 (7th Cir.2008); United States v. Garcia, 89 F.3d 362, 367 (7th Cir.1996); United States v. Boyd, 55 F.3d 239, 241 (7th Cir.1995).

Westmoreland points out that other circuits have recognized the outrageous conduct defense, though outright reversals on the defense are extremely rare. These few cases make clear that even if we were inclined to reexamine our precedent rejecting the defense, this case would not support the defense. Where it has been recognized, the defense has come into play only where the government's involvement created a crime or criminal enterprise that did not exist before, and where the government had to coerce the defendant to commit the crime by some unreasonable means. For example, in United States v. Solorio, 37 F.3d 454, 460–61 (9th Cir.1994), the Ninth Circuit...