United States v. Ronald Zitt

714 F.3d 511, 2013 WL 1501956, 2013 U.S. App. LEXIS 7466
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 15, 2013
Docket12-1277, 12-2865
StatusPublished
Cited by109 cases

This text of 714 F.3d 511 (United States v. Ronald Zitt) 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. Ronald Zitt, 714 F.3d 511, 2013 WL 1501956, 2013 U.S. App. LEXIS 7466 (7th Cir. 2013).

Opinion

WILLIAMS, Circuit Judge.

Ronald Zitt and Joshua Wampler were charged in a multi-count, multi-defendant indictment alleging a heroin conspiracy and substantive counts of distribution. See 21 U.S.C. §§ 841(a)(1), 846. Zitt was convicted after a jury trial of conspiring to distribute, and distributing, heroin. Wam-pler pleaded guilty to conspiring to distribute heroin. Both filed notices of appeal, and we consolidated their cases.

On appeal Zitt challenges the denial of his motion for a mistrial. Because the district court properly exercised its discretion in denying that motion, we affirm the judgment.

Wampler’s appointed lawyer has concluded that Wampler’s appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Wampler waived his right to appeal as a condition of his plea agreement. We therefore grant counsel’s motion to withdraw, dismiss the appeal, and deny Wampler’s motion for substitute counsel.

I.

Zitt went to trial for conspiring to distribute and distributing heroin. In his opening statement, Zitt’s lawyer, Adam Tavitas, reminded the jurors of their duty to assess the credibility of the government’s witnesses and asserted that many of those witnesses had agreed to testify against Zitt because, in exchange, they would receive lenient sentences for crimes they had committed.

On the second day of trial, the government called James Summers. The prosecutor questioned Summers, an informant, about his prior convictions in 1976 and 2005. On cross-examination, attorney Ta-vitas returned to that subject. He asked whether the defendant had known that Summers had gone to prison in 2005, and Summers answered, “I was in prison while he’s locked up.” At a sidebar Tavitas immediately moved for a mistrial. - He argued that Summers’s answer was improper because, although evidence of Zitt’s convictions would be admissible should he testify, Zitt had not yet decided whether he would take the stand. The jury would assume, Tavitas asserted, that Zitt had a criminal history and be prejudiced by that knowledge.

The prosecutor countered that Summers simply had given an “obvious answer” to Tavitas’s question. The prosecutor assured the court that Summers had been cautioned not to “bring up” Zitt’s convictions; neither the court nor Tavitas doubted that was true. The prosecutor added that, until then, he was unaware that Zitt and Summers had been “in jail together,” which prompted Tavitas to explain that they weren’t “together at the same jail,” and thus weren’t “bunkies or anything like that.”

The district court refused to order a mistrial but offered Zitt two lesser remedies: (1) a recess so that Tavitas could investigate whether Zitt and Summers had been incarcerated in the same facility at the same time; and (2) an admonishment to the jury that Summers’s answer was irrelevant. Zitt declined those options and the trial resumed.

During the 3-day trial the government called 15 witnesses, including law-enforcement officers, informants, codefendants, and heroin buyers. The jury learned that Zitt had confessed to a federal agent and divulged where he got his heroin, who traveled to retrieve it, and how he distributed it. Two codefendants testified that Zitt had sent them to get heroin in Chica *513 go and deliver it to buyers in Indiana. Several of Zitt’s customers also testified, implicating him in hundreds' of heroin sales. And investigators and informants testified about six attempts to buy heroin from Zitt, all documented with audio and video. Three of those controlled buys succeeded, two were foiled after Zitt’s confederates discovered the recording devices worn by the informant, and Zitt himself put the kibosh on the sixth controlled buy when the informant declined to sample the heroin as directed.

Zitt did not testify or present other evidence. The jury returned guilty verdicts on all counts. He was sentenced to life imprisonment.

On appéal Zitt argues that the district court abused its discretion, see United States v. Keskes, 703 F.3d 1078, 1086 (7th Cir.2013), by refusing to order a mistrial after Summers had said they were in jail together. The answer Summers gave, Zitt argues, was improper because his convictions were relevant only to impeach his credibility if he testified, which he did not. Evidence of prior crimes is always prejudicial, says Zitt, and in his view the district court’s offer to admonish the jury proves that the testimony was ■ so inflammatory that he was denied a fair trial.

Although the government accepts Zitt’s characterization of Summers’s answer as “improper,” we disagree. Examining another party’s witness entails risk in deciding what to ask and how to craft questions, see Holman v. Gilmore, 126 F.3d 876, 884 (7th Cir.1997), and after Summers gave an answer that surprised everyone, Zitt decided that his gamble did not pay off. Zitt’s trial lawyer, Tavitas, never explained why he asked that particular question, and Zitt does not offer. a reason on appeal. Whatever Tavitas’s intent may have been, the government’s argument at sidebar is persuasive: A logical answer to the question whether Zitt had known that Summers went to jail in '2005 is yes, because Summers was in prison at the same time as Zitt. Summers gave an answer that was responsive, fair, and entirely proper given the line of questioning Tavitas was pursuing. See United States v. Powell, 652 F.3d 702, 709 (7th Cir.2011); United States v. Johnson-Dix, 54 F.3d 1295, 1303-04 (7th Cir.1995). Tavitas invited the answer Summers gave, and thus the district court did not abuse its discretion by denying Zitt’s motion for mistrial. See id. at 1304 (conclhding that defense counsel invited government agent’s answer—that defendant told agent “half-truths”—in response to cross-examination inquiry into defendant’s willingness to answer agent’s questions, and upholding denial of motion for mistrial); United States v. Robinson, 439 F.3d 777, 782 (8th Cir.2006) (noting that “a witness’s truthful response to counsel’s own question is not grounds for a mistrial”); United States v. Vigneau, 187 F.3d 70, 81-82 (1st Cir.1999) (concluding that government witness’s answer alluding to credibility of other witnesses was arguably “fairly responsive” to defense counsel’s question and, because it was “a single brief reference,” harmless); United States v. Wills, 88 F.3d 704, 712-13 (9th Cir.1996) (upholding denial of motion for mistrial after defense counsel elicited testimony on cross-examination barred by motion in limine).

Zitt urges us to follow the reasoning in United States v. Aldrich,

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Bluebook (online)
714 F.3d 511, 2013 WL 1501956, 2013 U.S. App. LEXIS 7466, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ronald-zitt-ca7-2013.