United States v. Deral Willis

49 F.3d 1271, 1995 U.S. App. LEXIS 4921, 1995 WL 104810
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 14, 1995
Docket93-2880, 93-3320, 93-3324, 93-3325, 93-3326, 93-3350 and 94-1876
StatusPublished
Cited by20 cases

This text of 49 F.3d 1271 (United States v. Deral Willis) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Deral Willis, 49 F.3d 1271, 1995 U.S. App. LEXIS 4921, 1995 WL 104810 (7th Cir. 1995).

Opinion

EASTERBROOK, Circuit Judge.'

Between 1986 and 1991 Mario Claiborne orchestrated the distribution of many hundred kilograms of cocaine. Prosecutions followed the infiltration of the organization. Five of Claiborne’s former henchmen testified for the prosecution at the joint trial of eight conspirators. Claiborne himself agreed to cooperate as part of a plea bargain — but on the stand he reneged, accused the prosecutors of improper conduct, and exculpated the defendants, only to be impeached by grand jury testimony in which he had said almost precisely the opposite in every detail. To top off this performance, after two defendants had finished their cross-examination Claiborne decided that he was fed up and refused to say another word, even after being held in contempt of court. (Claiborne has since been convicted as the kingpin of the drug ring and sentenced to life without parole; it is easy to see why extra time for contempt held no threat for him.) Because only two of the defendants were able to cross-examine Claiborne, the district court directed the jury to disregard his testimony. To avoid confusion, the judge applied that order to all defendants. All were convicted. Those who appeal contend that it was not enough to strike Claiborne’s testimony, which they say the jurors were bound to consider despite the court’s admonition; they demanded a mistrial and renew that request on appeal.

*1273 Defendants tell us that Claiborne’s testimony was devastating. We doubt it. The grand jury testimony the prosecutor read to Claiborne was damning, all right, but Claiborne disowned it, saying that it was all a script the prosecutor wrote for him and he didn’t mean a word of it. Otherwise Claiborne was truculent, and when he said anything he made it plain that he was on the defendants’ side. The jurors saw a fickle witness, by his own admission untrustworthy and willing to say anything in a pinch. The two defendants who cross-examined Claiborne did not ask him many questions; he had already done them a big favor, and they hardly wanted him to switch sides again. Claiborne’s testimony took less than two days of a two-month trial; the other evidence against the defendants was enough to cook many geese. A judge has substantial discretion to manage trials when events take surprising and unfortunate turns. The district judge did not abuse that discretion in striking Claiborne’s testimony and letting the trial proceed. See United States v. Torres, 733 F.2d 449, 461 (7th Cir.1984).

But wait!, defendants cry. Claiborne was not just any witness; he was a co-conspirator. If he had given an out-of-court statement after the conspiracy, the judge could not have admitted that statement without permitting the defendants an opportunity for cross-examination; using the statement deprives the defendant of the right to confront and cross-examine his accuser. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), applies that principle to ban the admission of one defendant’s statement that inculpates another, even when the judge gives an instruction limiting the use of that statement to the defendant who made the admission. The Court thought that jurors would not be able to consider the statement against its author without considering it against the co-defendant. If jurors can’t follow this limiting instruction, defendants ask, how can they follow the instruction to disregard Claiborne’s testimony altogether?

One answer is that jurors, like other people, have trouble distinguishing among uses of information. Told that a piece of information is reliable enough to use against Defendant # 1, the most conscientious juror will have trouble with the idea that it can’t be used against Defendant #2. Even a juror who does his level best to deal separately with the evidence may discover that limitations on human mental skills prevent that. It is much easier to follow an instruction of the kind the judge gave here: don’t consider Claiborne’s testimony against anyone. Such instructions are common in trials., Whether jurors are uniformly able to follow them may be doubted, but courts accept some imperfection because the alternative — doing trials over and over again until one comes out perfect — may be even worse. Cf. Zafiro v. United States, — U.S. —, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) (benefits of joint trials justify tolerating effect that evidence against one defendant may have for another). Evidence is not necessarily better in a second trial, which will be plagued with errors of its own and always must deal with fading memories. In recent years the Supreme Court has told us to accept jurors’ ability to follow limiting instructions; although the Court is unwilling to overrule Bruton, it has declined to extend it or to construct additional rules that presume jurors’ inability to follow instructions. Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). See also Shannon v. United States, — U.S. —, —, 114 S.Ct. 2419, 2427, 129 L.Ed.2d 459 (1994); Gacy v. Welborn, 994 F.2d 305, 313 (7th Cir.1993). Defendants have not found any case calling for an automatic mistrial when a statement within the scope of Bruton is introduced and then stricken from the record. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), and Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), show that Bruton errors may be harmless; it follows that when the judge tells the jury to disregard the evidence altogether, and therefore avoids any “Bruton error,” the trial may continue. Cf. Greer v. Miller, 483 U.S. 756, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987). Claiborne’s abortive appearance on the stand did not poison this jury irretrievably; indeed, his exposure to cross-examination by two defendants might well have justi- *1274 fled at least limited consideration of his testimony on direct examination.

Although defendants present many other objections to their convictions, none requires separate discussion. Sentencing is another matter. The district judge was entitled to credit the evidence against the defendants and to deny Eula Scott’s request for a three-level (as opposed to two-level) reduction for acceptance of responsibility. But four defendants — Harold Williams, Stanley Wright, Christopher Epison, and Deral Willis — raise serious challenges to the quantity of cocaine attributed to them under the relevant conduct guideline, U.S.S.G. § lB1.3(a)(2).

Williams and Wright were street dealers, selling packages of cocaine for $20 apiece. Each received frequent deliveries from one of the syndicate’s couriers. Williams sold an ounce or two per week, Wright two to three ounces.

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Bluebook (online)
49 F.3d 1271, 1995 U.S. App. LEXIS 4921, 1995 WL 104810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-deral-willis-ca7-1995.