United States v. Turner

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2592

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

M ATTHEW A. T URNER,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. 4:07-cr-40084-MMM-JAG—Michael M. Mihm, Judge.

A RGUED M ARCH 28, 2011—D ECIDED JULY 11, 2011

Before K ANNE, S YKES, and H AMILTON, Circuit Judges.

H AMILTON, Circuit Judge. In January 2009, a jury con-

victed Matthew A. Turner for conspiracy to possess and

distribute at least five kilograms of cocaine and at

least fifty grams of crack cocaine, and for possession of

a firearm in furtherance of a drug trafficking offense.

Turner raises two issues on appeal, each for the first time.

First, he contends that he was wrongfully deprived of

his Sixth Amendment right to counsel of his choice

2 No. 09-2592

when the district court disqualified his retained attor-

ney from the case. Second, Turner complains that the

prosecutor’s comments during closing argument invited

the jury to draw an improper inference from the

evidence and amounted to prosecutorial misconduct.

We affirm. The district court did not plainly err by dis-

qualifying Turner’s attorney for a conflict of interest or

by allowing the prosecutor’s remarks, without objection,

during closing argument.

I. Factual and Procedural Background

We recount the facts in the light most favorable to

the jury’s verdict. See United States v. Hill, 552 F.3d

541, 543 n.1 (7th Cir. 2008). In September 2007, police

monitoring a controlled drug delivery arrested de-

fendant Turner and four others at a home on the south

side of Chicago. Police obtained valid consent to search

the house. Beneath the bathroom cabinets and kitchen

sink they found large quantities of crack and powder

cocaine, a large amount of cash, drug paraphernalia,

cocaine packaging materials, and two firearms.

Turner and the others were indicted in the Central

District of Illinois for conspiracy to possess and

distribute at least five kilograms of cocaine. Turner re-

tained a private defense attorney, Steven C. Rueckert. In

August 2008, however, the district court disqualified

attorney Rueckert in response to the government’s

“Notice of Potential Conflict of Interest.” Turner was

then assigned court-appointed counsel.

No. 09-2592 3

The case proceeded, and by October 2008 Turner faced

a second superseding indictment charging him with

Count I, conspiracy to possess and distribute at least

five kilograms of cocaine and more than fifty grams of

crack cocaine, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A),

and 846, and Count II, use of a firearm in furtherance of

a drug trafficking crime, see 18 U.S.C. § 924(c)(1)(A).

By the time of trial, Turner’s four co-defendants had

all pled guilty. Three of them testified about Turner’s

involvement in the cocaine trade, and the government

presented additional physical evidence, as well

as evidence of Turner’s unexplained wealth. Turner

took the stand on his own behalf. He testified that he

had been involved in the cocaine trade but had

stopped dealing just before the period charged in the

indictment. Turner also called several character

witnesses to testify that they had never seen him with

drugs or a gun. During closing argument, Turner

argued that his co-conspirators were using him as a

patsy in order to obtain favorable treatment. The gov-

ernment responded by attacking Turner’s credibility,

characterizing his testimony about leaving the drug

business shortly before the charged conspiracy began

as “too convenient to be believed.”

The jury found Turner guilty on both counts of the

second superseding indictment. The district court sen-

tenced Turner to life imprisonment on the cocaine

charge and sixty months on the firearm charge. Turner

appeals his convictions.

4 No. 09-2592

II. Discussion

A. Sixth Amendment Right to Counsel of Choice

Turner’s first argument is that the disqualification of

his retained attorney violated his Sixth Amendment

right to be represented by counsel of his choice. We find

no reversible error. Turner forfeited the issue, and the

district court did not plainly err by removing attorney

Rueckert from the case.

1. The Facts

Attorney Rueckert represented Turner until the

district court disqualified Rueckert in response to the

government’s “Notice of Potential Conflict of Interest,”

filed in August 2008. The government had learned that

Turner, who had not been gainfully employed for some

time, obtained Rueckert’s services by paying him

$25,000 in cash, delivered by Turner’s girlfriend while

he was in jail. Intending to make an issue of Turner’s

unexplained wealth, including the attorney fee paid in

cash, the government argued that Rueckert had landed

“front and center as a witness in this case” and therefore

could not continue to represent Turner. At a pretrial

hearing held on August 13, 2008, the district judge

raised the issue with the parties. After the government

stated its position for the record, the following ex-

change occurred:

THE COURT: Do I understand correctly you plan to

call Mr. Rueckert as a witness?

No. 09-2592 5

[GOVERNMENT]: Yes.

THE COURT: I mean, obviously if you’re permitted

to do that, then he can’t represent Mr. Turner. That’s

the bottom line. Mr. Rueckert, would you respond

to this, please?

MR. RUECKERT: Well, Your Honor, I’ve read the

motion and I have spoken to [the prosecutor] about

this. I mean, if they’re going to call me as a witness,

I think the case law is pretty clear. I can’t be both.

THE COURT: I agree with that. Obviously the ques-

tion that needs to be asked before that or answered

before that is [whether] it is appropriate for them

to call you as a witness. So the question to you is

based on what you have learned from them orally

and based on their written pleadings, do you have

a legal argument to make at this point that they

cannot appropriately call you as a witness?

MR. RUECKERT: Well, obviously I can’t talk about

how the money was arranged or any of Mr. Turner’s

involvement in arrangement of the money. I can’t

do that. But I guess if part of their case is, you know,

to prove up how much I got paid, based on the

cases they’ve cited, I see no legal argument why

they can’t do that.

At the conclusion of this exchange, the district court

disqualified attorney Rueckert from the case. At Turner’s

trial, the government did not actually call Rueckert to

testify. The defense raised no objection about the choice

of counsel issue until appeal.

6 No. 09-2592

2. Standard of Review

We generally review a decision to disqualify counsel

for an abuse of discretion. United States v. Bender, 539 F.3d

449, 454 (7th Cir. 2008), citing Wheat v. United States,

486 U.S. 153, 164 (1988). Where a defendant and his

attorney fail to preserve an argument by properly ob-

jecting, however, a different standard of review applies.

A defendant’s state of mind at the time he fails to

object determines whether the failure constitutes waiver

or forfeiture. “A waiver is ‘the manifestation of an in-

tentional choice not to assert [a] right,’ distinguishing

it from forfeiture, which is an accidental or negligent

omission (or ‘an apparently inadvertent failure to assert

a right in a timely fashion’).” United States v. Walton,

255 F.3d 437, 441 (7th Cir. 2001), quoting United States

v. Cooper, 243 F.3d 411, 416 (7th Cir. 2001). While waiver

extinguishes all appellate review of an issue, forfeited

issues are reviewable for plain error. Id.

We need not decide here the defendant’s state of mind

at the time of his failure to object. The government con-

ceded at oral argument that Turner’s failure should not

be considered a waiver of the issue. The government

argued instead that the issue was forfeited and that

we should review for plain error.

Turner, on the other hand, makes two arguments

against a finding of either waiver or forfeiture. While

he acknowledges the absence of any objection in the

record, he contends that the Sixth Amendment right to

counsel is so personal in nature that only the client

himself, and not his attorney, could have forfeited it. We

No. 09-2592 7

are not persuaded. The ethical rules governing the

legal profession prohibit lawyers from continuing to

represent a client in many conflict of interest situations

even if the client would prefer for the representation

to continue. See, e.g., Analytica, Inc. v. NPD Research,

Inc., 708 F.2d 1263, 1266 (7th Cir. 1983) (lawyer may

not represent an adversary of his former client if the

subject matter of the two representations is “substantially

related”; rule encourages clients to feel comfortable

sharing confidences with their attorneys); Illinois Rules

of Professional Conduct 1.16(a)(2) (1990) (“A lawyer

representing a client before a tribunal shall withdraw

from employment (with permission of the tribunal if such

permission is required) . . . if . . . the lawyer knows or rea-

sonably should know that such continued employment

will result in violation of these Rules”) (emphasis

added).1 These rules are inconsistent with an assertion

that the right to counsel of choice guarantees any client,

including a criminal defendant, the exclusive right to

decide when the attorney-client relationship begins and

ends.

In a similar vein, Turner argues that the district court

should have asked him personally whether he would

like to waive the conflict in question. Again, we are not

persuaded. It is well-settled that, under certain circum-

1

Illinois amended its Rules of Professional Conduct for

attorneys effective January 1, 2010, but we quote and discuss

here the version of the rules in effect in 2008 when Rueckert

was disqualified.

8 No. 09-2592

stances, a district court may remove defense counsel

from the case even in the face of a criminal defendant’s

proffered waiver. See United States v. Turner, 594 F.3d

946, 952 (7th Cir. 2010) (reviewing cases). The district

court was under no legal obligation to seek out a waiver

it could have overridden, particularly where defense

counsel agreed he was required to withdraw. Ac-

cordingly, we treat Turner’s failure to object as a for-

feiture and review for plain error.

On review for plain error, a convicted defendant

must show that: (1) the error complained of actually

occurred; (2) the error was clear or obvious; (3) the error

affected his substantial rights (i.e., he probably would

not have been convicted absent the error); and (4) the

error seriously impugned the judicial proceeding’s

fairness, integrity, or public reputation. United States v.

Tanner, 628 F.3d 890, 898 (7th Cir. 2010), citing United

States v. Anderson, 604 F.3d 997, 1002 (7th Cir. 2010).

The third prong of the plain error test—whether the

error affected the defendant’s substantial rights—calls

for essentially the same inquiry as harmless error analy-

sis. United States v. Wheeler, 540 F.3d 683, 690 (7th Cir. 2008),

citing United States v. Ross, 77 F.3d 1525, 1540 (7th Cir.

1996). An argument can be made that the third prong

should drop out of the plain error analysis where the

error is “structural.” The erroneous deprivation of the

right to chosen counsel constitutes a structural error and

entitles an aggrieved defendant to reversal without a

showing of prejudice. See United States v. Gonzalez-

Lopez, 548 U.S. 140, 150 (2006) (“We have little trouble

No. 09-2592 9

concluding that erroneous deprivation of the right to

counsel of choice, with consequences that are neces-

sarily unquantifiable and indeterminate, unquestionably

qualifies as structural error.”), quoting Sullivan v.

Louisiana, 508 U.S. 275, 282 (1993) (quotation marks omit-

ted). It is not a long step to argue that prejudice

also should be presumed (or need not be shown inde-

pendently) under the plain error standard. The

Supreme Court, however, has specifically reserved the

question of the application of the third plain error prong

to structural errors. See Puckett v. United States, 129

S. Ct. 1423, 1432 (2009); see also United States v. Marcus,

130 S. Ct. 2159, 2164 (2010) (citing Puckett on this point).

We need not resolve that methodological issue defin-

itively here because we find no sufficiently clear error.

There is a similar issue regarding the fourth prong of

the plain error test when a structural error of the sort

alleged here occurs. It seems no easier to determine

whether an action with “unquantifiable and indetermi-

nate” consequences on the course of trial proceedings

“seriously impugned” those proceedings’ fairness than

it is to inquire whether it effectively prejudiced the de-

fendant’s case. Because we find no sufficiently clear error,

however, we also do not reach this issue under the

fourth prong of the plain error test.

3. Analysis

For an error to be “plain,” it must be of such an obvious

nature that “the trial judge and prosecutor were derelict

in countenancing it, even absent the defendant’s timely

10 No. 09-2592

assistance in detecting it.” United States v. Frady, 456 U.S.

152, 163 (1982). “It cannot be subtle, arcane, debatable,

or factually complicated. It must be—plain; but it needn’t

be blatant.” United States v. Caputo, 978 F.2d 972, 975 (7th

Cir. 1992). We find no plain error here.

The Sixth Amendment gives the accused in criminal

cases the right to hire attorneys of their choice. Turner,

594 F.3d at 948, citing Wheat, 486 U.S. at 159. The right has

been regarded as “the root meaning of the constitutional

guarantee” in the Sixth Amendment. Gonzalez-Lopez,

548 U.S. at 147-48, citing Wheat, 486 U.S. at 159. Even so,

a defendant’s choice of counsel may be overridden

and counsel may be disqualified where an actual conflict

of interest or a serious potential for conflict exists.

Wheat, 486 U.S. at 163-64 (affirming refusal to accept

defendant’s waiver of attorney’s “serious potential” for

conflict of interest); accord, Turner, 594 F.3d at 952. A

conflict that amounts to a breach of the code of

professional ethics “obviously qualifies” as an actual

conflict of interest of the sort that allows the trial court

to disqualify counsel regardless of a defendant’s offer

to waive. Turner, 594 F.3d at 952.

Rules of professional conduct for attorneys have long

recognized that having an attorney testify either for or

against his client can put great stress on our system

of justice. The specific issue here arose under the Illinois

provision then governing when an attorney may be

called as a witness other than on behalf of his client. The

government’s notice of potential conflict of interest

relied on Illinois Rule of Professional Conduct 3.7(b),

which stated in 2008:

No. 09-2592 11

If a lawyer knows or reasonably should know that

the lawyer may be called as a witness other than on

behalf of the client, the lawyer may accept or con-

tinue the representation until the lawyer knows or

reasonably should know that the lawyer’s testimony

is or may be prejudicial to the client.

The Central District of Illinois has adopted the Illinois

Rules of Professional Conduct. Under the applicable

version of Rule 3.7(b), attorney Rueckert faced a

conflict that could amount to a breach of the code of

professional ethics. As soon as he read the govern-

ment’s notice of potential conflict, he knew or reasonably

should have known that he could be called as a witness

against his client, at least unless there was a persuasive

reason to prevent the government from doing so.

Rueckert also knew or reasonably should have known

that the testimony the government sought—about his

client’s unexplained wealth—would be prejudicial to

his client. If the government planned, and was legally

permitted, to call Rueckert as a witness against his

client, he could not continue to represent him.

Turner argues on appeal that case law actually

forbade the government from calling attorney Rueckert

to testify under these circumstances, negating any

alleged Rule 3.7(b) conflict. Turner relies on United States

v. Britton, 289 F.3d 976 (7th Cir. 2002), where we said:

“where evidence is easily available from other sources

and absent extraordinary circumstances or compelling

reasons, an attorney who participates in the case should

not be called as a witness.” 289 F.3d at 982, quoting

12 No. 09-2592

United States v. Dack, 747 F.2d 1172, 1176 n.5 (7th Cir.

1984) (quotation marks omitted).

In support of this point, Turner argues that the gov-

ernment could have introduced the same evidence of

unexplained wealth—the $25,000 cash payment to

attorney Rueckert—through his girlfriend, who delivered

the sum on his behalf. Turner also calls the proposed

attorney testimony “cumulative,” insisting that the gov-

ernment could just as easily have brought his wealth to

the jury’s attention with evidence of his luxury vehicle

purchases. Finally, Turner argues that the government’s

decision not to call attorney Rueckert to testify at

trial demonstrates that he was not a necessary witness.

We are not persuaded. The fact that Rueckert did not

testify at trial does not mean that his testimony did not

appear necessary during pretrial proceedings. The

issue was presented to the district court for decision

long before trial. A district court faced with a potential

conflict of interest must act “not with the wisdom of

hindsight after the trial has taken place, but in the

murkier pretrial context when relationships between

parties are seen through a glass, darkly.” Wheat, 486 U.S.

at 162. Given the facts available during the murky

pretrial phase, we find no plain error such that the

district court could have been deemed “derelict in counte-

nancing” Rueckert’s disqualification. See Frady, 456 U.S.

at 163.

At the time the issue arose, the government was rea-

sonably concerned that Turner’s girlfriend would refuse

to testify, meaning that the same testimony would not

No. 09-2592 13

in fact be available from an alternative source. While

the government’s case against Turner at trial turned out

to be very strong, it was based in large part on coopera-

tive testimony from Turner’s co-defendants who pled

guilty. As of the August 13, 2008 hearing when

Rueckert was disqualified, they had not yet pled guilty.

At that time, all evidence of unexplained wealth may

well have seemed necessary to the government’s case.

These facts undermine Turner’s argument that the gov-

ernment should not have expected to call Rueckert as

a witness against Turner, so that he should not have

been disqualified.

We do not take the disqualification of defense counsel

lightly, especially when the same evidence might have

been available through alternate sources or had limited

probative value. See United States v. Gearhart, 576 F.3d

459, 464 (7th Cir. 2009); Britton, 289 F.3d at 982-83. We are

wary of the potential for abuse that comes with allowing

the government to disqualify the defendant’s chosen

attorney. The issue in this case would be closer if we

encountered it, for example, on review of a disqualifica-

tion order entered over a vigorous objection. In this

case, however, the district court properly raised the

issue with counsel, and the issue was promptly for-

feited. We find no plain error in the district court’s deci-

sion to disqualify attorney Rueckert.

B. Closing Argument

Turner’s second issue on appeal is that comments

made by the prosecutor during closing argument

14 No. 09-2592

amounted to prosecutorial misconduct because they

invited the jury to draw an improper inference of his

guilt for the charged crimes based on his admission of

prior involvement in the drug trade.

1. The Facts

In his closing argument, Turner argued that he was

innocent of the crime actually charged and that his

former co-defendants, who testified against him in ex-

change for leniency, were just looking for someone to

take the fall. Turner argued that his checkered past

made him the perfect “patsy.” This argument was based

on Turner’s own testimony. Taking the stand in his own

defense, Turner claimed that, although he had been a

cocaine dealer in the past, he stopped dealing in

October 2005, just before the beginning of the conspiracy

charged in the indictment. At that time, he said, the

murder of his friend and business partner persuaded

him that the risks were too high.

On rebuttal, the government argued that Turner was

the one looking for a patsy. The government relied

on telephone calls Turner made from jail while he was

awaiting trial. Turner asked Carl Hopkins, one of his co-

conspirators, to take the fall for the group’s misdeeds.

Recordings of these calls were admitted during trial.

Next, the prosecutor commented on Turner’s testimony:

You heard his own words. You heard it. You heard

him testify. There weren’t just two drug dealers that

testified here. It wasn’t just Mr. Mejia, and it wasn’t

No. 09-2592 15

just Mr. Hopkins. There were three. It was this Defen-

dant. There was this Defendant who told the story

that he was a drug dealer. He used to deal all kinds

of drugs, made a lot of money, that he just put in

a shoe box someplace, and kept it at his mom’s house.

In 2005, coincidentally when this conspiracy is

charged, that’s when he quit and he didn’t do any-

thing any more, and he was completely out of it.

You saw his demeanor as he testified. You heard

some of the things he said. And one of the things

that you need to bring to the process is your common

sense.

Ask yourself, does that make sense? It doesn’t make

any sense at all. Doesn’t make any sense at all. It is

awfully convenient, but it doesn’t make any sense.

Turner did not object to this line of argument at the time.

He now contends, though, that the prosecutor made a

prohibited “once a drug dealer, always a drug dealer”

argument, effectively asking the jury to convict him for

this charged crime based on his involvement with

similar activities in the past. See United States v.

Simpson, 479 F.3d 492, 503 (7th Cir. 2007), abrogated in

part on other grounds, United States v. Boone, 628 F.3d

927, 933 (7th Cir. 2010).

2. Standard of Review

Whether a prosecutor’s comments to the jury rise to

the level of prosecutorial misconduct depends initially

16 No. 09-2592

on whether the prosecutor’s conduct was improper.

Simpson, 479 F.3d at 503, citing United States v. Hale, 448

F.3d 971, 986 (7th Cir. 2006). If so, we then ask whether

the conduct prejudiced the defendant. Id. When a defen-

dant objects for the first time on appeal that a prosecutor

made improper comments during closing arguments,

we review only for plain error. United States v. Bowman,

353 F.3d 546, 550 (7th Cir. 2003). Because Turner did not

object at trial, he must establish “not only that the

remarks denied him a fair trial, but also that the out-

come of proceedings would have been different absent

the remarks.” Id., quoting United States v. Sandoval, 347

F.3d 627, 631 (7th Cir. 2003); United States v. Nunez, 532

F.3d 645, 653 (7th Cir. 2008). An error is not plain unless

it is of such an obvious nature that the trial judge and

prosecutor were “derelict in countenancing” it, even

absent the defendant’s timely objection. Frady, 456 U.S.

at 163.

3. Analysis

A district court has “considerable discretion” in super-

vising the arguments of counsel. United States v. Amerson,

185 F.3d 676, 685-86 (7th Cir. 1999). In this case, the

district court was not derelict in allowing the prosecutor’s

remarks without objection. We find no plain error.

Turner’s argument that the remarks were impermissible

relies on United States v. Simpson, 479 F.3d 492. In that

case, an FBI agent testified that the defendant confessed

to working as a cocaine dealer for several years, and to

No. 09-2592 17

having made deliveries for a named individual. When

the agent asked about a specific transaction with

that named individual, the defendant said he could not

remember. Id. at 495. The prosecutor referred to these

admissions during closing argument, stating:

And you know what the defendant told him: Yes, I’m

a crack dealer. I’ve been a crack dealer for three to

four years, and I could have done this transaction,

2 1/4 ounces, on behalf of Michael Hatton, but I

don’t remember, because my view of the inference,

the inference being he’s done so many that he

couldn’t remember this one.

Id. Unlike Turner in this case, Simpson objected immedi-

ately. We agreed with the defendant that these remarks

asked the jury to draw an improper inference. Id. at

503. The argument did not refer to the facts of the trans-

action actually charged and quite plainly asked the jury

to consider the defendant’s admission of other crimes

as evidence of the one he could not remember. Id.

This case is much less clear-cut. A canonical statement

in this field is that, while a prosecutor “may strike hard

blows, he is not at liberty to strike foul ones.” Berger v.

United States, 295 U.S. 78, 88 (1935). The operative

portion here is that the prosecutor was allowed to

strike hard blows. “Once a drug dealer, always a drug

dealer” arguments are considered foul blows, but “so

long as the evidence supports the comments, prosecutors

may speak harshly about the actions and conduct of the

accused.” United States v. Durham, 211 F.3d 437, 440 (7th

Cir. 2000), citing United States v. Cook, 432 F.2d 1093, 1106-

18 No. 09-2592

07 (7th Cir. 1970). A comment on the defendant’s cred-

ibility that is supported by the evidence is a hard blow,

but a fair one. “Where the character and credibility of

the defendant are at issue and the evidence allows the

inference that the defendant has been less than truthful,

the prosecutor does not err in closing argument by refer-

ring to the defendant as a liar.” United States v. Catalfo,

64 F.3d 1070, 1080 (7th Cir. 1995).

Turner placed his character and credibility at issue

with his own testimony and the testimony of the other

witnesses he called. The prosecutor’s comments were

intended to make the jury reject that testimony in light

of the weight of evidence for the government. The

theme throughout was that Turner’s story was just

too convenient to be believed. It is acceptable under

these circumstances for a prosecutor to argue that the

defendant was lying. It is no less acceptable to highlight,

through rhetorical questions, the improbable and conve-

nient nature of his testimony, leaving the jurors to

draw their own conclusions about his truthfulness.

The prosecutor’s remarks were, at the very least, not

so clearly improper that the trial judge was derelict in

his duty for countenancing them, even absent any

timely objection by the defense. There was no plain

error, and we need not proceed to an analysis of any

possible prejudicial effect.

The judgment of the district court is A FFIRMED.

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