United States v. Jacob Stadfeld

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1369

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

JACOB S TADFELD,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 08-CR-138-BBC-2—Barbara B. Crabb, Judge.

A RGUED S EPTEMBER 22, 2011—D ECIDED JULY 27, 2012

Before P OSNER, F LAUM, and S YKES, Circuit Judges.

S YKES, Circuit Judge. Amos Mortier was a major

marijuana distributer with a network of street-level

sellers in and around Madison, Wisconsin. He disap-

peared in November 2004, and the Dane County District

Attorney’s Office opened a John Doe proceeding to deter-

mine whether a crime had been committed. Prosecutors

subpoenaed Mortier’s known drug associates to testify

in the John Doe.

2 No. 11-1369

Jacob Stadfeld was one of those dealers and received

a subpoena in December 2004. Rather than appear

before the John Doe judge, assert his right to remain

silent, and follow the steps necessary to obtain formal

immunity, he opted to talk to investigators informally

in exchange for an oral nonprosecution agreement from

the state prosecutor. Stadfeld’s retained counsel mis-

takenly advised him that this nonprosecution agree-

ment immunized him against the use of his statements

by any prosecutor’s office—state or federal. Almost four

years later, based in part on his statements to the John

Doe investigators, Stadfeld was indicted by a federal

grand jury for conspiracy to distribute marijuana.

He moved to suppress the use of his statements,

arguing that he spoke to investigators only because he

was under the mistaken impression that he had full

immunity. The district court denied the motion, holding

that although Stadfeld got bad advice from his attorneys,

neither the police nor the prosecutor had misled him, so

his statements were not involuntary. The court also

held that regardless of any misunderstanding about

the scope of the nonprosecution agreement, Stadfeld

breached it by lying to the investigators. Stadfeld was

convicted by a jury and now appeals, raising several

claims of error, but focusing primarily on the admission

of his statements at trial.

We affirm. The district court properly denied the sup-

pression motion. Stadfeld’s statements were not the

product of law-enforcement coercion, and the erroneous

advice from his lawyers did not make his statements

No. 11-1369 3

involuntary or inadmissible based on ineffective

assistance of counsel. Moreover, to the extent that

Stadfeld thought he had a comprehensive immunity

agreement, it was conditioned on his telling the truth,

and his failure to do so was a breach.

I. Background

In November 2004, Mortier, a large-scale marijuana

distributor, disappeared from his home in Fitchburg,

Wisconsin, a small town just outside Madison. In re-

sponse to his disappearance, the Dane County Dis-

trict Attorney’s office opened a John Doe proceeding

to investigate and determine whether a crime had been

committed. See generally W IS. S TAT. § 968.26. Prosecutors

subpoenaed Mortier’s known drug associates to testify

in the John Doe. Some appeared before the John Doe

judge, asserted their Fifth Amendment privilege against

self-incrimination, and forced the prosecutor to ask the

judge to convene as a court and grant formal immunity

in order to compel their testimony. See id. §§ 968.26(3),

972.08(1); State v. Washington, 266 N.W.2d 597, 607-08 (Wis.

1978) (explaining the scope of the John Doe proceeding);

see also In re John Doe Proceeding, 660 N.W.2d 260, 282-

83 (Wis. 2003) (Sykes, J., dissenting) (explaining the

limits on the John Doe judge’s power). Stadfeld received

a John Doe subpoena, but he did not follow that formal

course. Instead, on the advice of his retained counsel,

he agreed to talk to investigators informally.

In exchange for Stadfeld’s informal cooperation, Assis-

tant District Attorney Corey Stephan orally agreed not to

4 No. 11-1369

prosecute him based on any statements he made about

his involvement in Mortier’s drug-distribution network

provided that he gave a complete and truthful statement

to investigators. Stadfeld’s attorneys erroneously told

him that Stephan’s nonprosecution promise gave him

complete immunity—not just from state prosecution

but from the use of his statements in any prosecution

against him, state or federal.

Stadfeld thereafter met several times with John Doe

investigators, including Detective Shannan Sheil-

Morgan of the Fitchburg Police Department. He gave the

investigators a series of conflicting statements about

Mortier’s drug-trafficking activities and his own role in

the marijuana distribution network dating back to 2000.

In 2008 the United States Attorney for the Western

District of Wisconsin used Stadfeld’s statements to

indict him for conspiracy to distribute marijuana in

violation of 21 U.S.C. §§ 841(a)(1) and 846. Stadfeld moved

to dismiss, or alternatively, to suppress the use of his

statements against him at trial. He claimed that the state-

ments were involuntary because he mistakenly be-

lieved, based on the erroneous advice of his counsel,

that he had full immunity when he talked to the John Doe

investigators.

A magistrate judge heard evidence and recommended

that the district court deny both motions. In his report

and recommendation, the magistrate judge found that

Stadfeld’s statements had not been induced by any coer-

cive conduct on the part of the state prosecutor or the

John Doe investigators. He also noted that to the extent

No. 11-1369 5

Stadfeld relied on the mistaken advice of his counsel, he

was not entitled to dismissal or suppression because he

breached whatever immunity agreement he thought he

had by lying to investigators in a number of material

respects. The district court accepted the magistrate

judge’s recommendation and denied both motions.

Prior to trial Stadfeld moved to exclude any reference

to Mortier’s disappearance and the existence of the

John Doe investigation, citing the possibility of inflam-

matory prejudice.1 At the final pretrial hearing, however,

Stadfeld’s attorney withdrew the motion and asked the

court to allow the admission of evidence of the John Doe

on the theory that it was necessary to show the bias of

several of the government’s witnesses. In particular,

Stadfeld wanted to argue that the alleged coconspirators

falsely implicated him in the drug conspiracy to shift

the focus off themselves in the John Doe. The court denied

1

Mortier is still missing and presumed murdered. While

Stadfeld was awaiting sentencing in this case, the government

openly considered attempting to prove that Stadfeld was

involved in Mortier’s death for the purpose of establishing a

factual basis for a murder enhancement under U.S.S.G.

§ 2D1.1(d)(1). See Government’s Request To Continue Sen-

tencing, United States v. Stadfeld, No. 08-CR-138-C (W.D. Wis.

Nov. 3, 2010). The government ultimately decided not to

seek the enhancement. See Notice of Government’s Intent To

Not Seek Enhancement, United States v. Stadfeld, No. 08-CR-138-C

(W.D. Wis. Jan. 18, 2011); Government’s Sentencing Memoran-

dum, United States v. Stadfeld, No. 08-CR-138-C (W.D. Wis.

Feb. 1, 2011).

6 No. 11-1369

this request. Later, however, the court accepted defense

counsel’s request to refer generically to the existence of

“another investigation” or a “different investigation”

when questioning the witnesses.

At trial the government called Detective Sheil-Morgan

to testify about the interviews with Stadfeld. During cross-

examination, Stadfeld’s counsel asked the detective if

she could produce her interview notes. She testified that

the notes were probably destroyed after she filed her

formal reports memorializing the interviews. Stadfeld’s

attorney asked the court to order Sheil-Morgan to

produce her notes. The judge told the detective to look

for her notes during a court recess, but later reversed

course. The government objected to the defense de-

mand for the notes, pointing out that Sheil-Morgan’s

written reports had been produced during discovery,

and there was no reason to think there was any discrep-

ancy between her formal reports and the notes. The

court sustained the objection and denied Stadfeld’s

request for production of the detective’s interview notes.

The jury found Stadfeld guilty of conspiracy to

distribute 100 or more kilograms of marijuana. At sen-

tencing the court accepted the government’s position

that the total drug quantity for the conspiracy was at

least 2,177 kilograms of marijuana (about 100 pounds per

month for 48 months) and attributed the entire amount

to Stadfeld in light of his intimate knowledge of the

conspiracy and willingness to join it. More specifically,

the court found that Stadfeld was aware of the source

of the drugs, the means of transportation, the drug-pack-

No. 11-1369 7

aging and delivery methods, the quantities customarily

delivered, and the names of other marijuana distributors

in the chain. The court’s relevant-conduct finding

yielded an advisory guidelines range of 168 to 210

months. The judge sentenced Stadfeld to 144 months.

This appeal followed.

II. Discussion

Stadfeld raises three claims of error. First, he argues

that the district court should have suppressed his state-

ments to the John Doe investigators. He also challenges

the court’s evidentiary rulings regarding Detective Sheil-

Morgan’s interview notes and the exclusion of the

evidence of Mortier’s disappearance and the existence of

the John Doe investigation. Finally, he claims that the

court erroneously held him responsible for the full

amount of marijuana distributed by the conspiracy as

jointly undertaken criminal activity for sentencing pur-

poses.

A. Stadfeld’s Motion To Suppress

We review the denial of Stadfeld’s motion to suppress

under a dual standard of review: Factual findings are

reviewed for clear error, with special deference to the

district court’s credibility determinations, and conclu-

sions of law are reviewed de novo. United States v.

Villapando, 588 F.3d 1124, 1127 (7th Cir. 2009). Stadfeld

argues that his statements to the John Doe investigators

were involuntary and should have been suppressed.

8 No. 11-1369

His basic contention is that but for the bad advice of his

attorneys about the scope of the state nonprosecution

agreement, he would not have spoken with the police.

A conviction obtained by the use of an involuntary

confession violates due process. United States v. Vallar, 635

F.3d 271, 281 (7th Cir. 2011). A confession is voluntary

and admissible if, “ ‘in the totality of circumstances, it is

the product of a rational intellect and free will and not

the result of physical abuse, psychological intimidation,

or deceptive interrogation tactics that have overcome

the defendant’s free will.’ ” Id. at 282 (quoting United

States v. Gillaum, 372 F.3d 848, 856 (7th Cir. 2004)). A

false promise of lenience is “an example of forbidden

[interrogation] tactics, for it would impede the suspect

in making an informed choice as to whether he was

better off confessing or clamming up.” United States v.

Baldwin, 60 F.3d 363, 365 (7th Cir. 1995).

An obvious flaw in Stadfeld’s argument is that it rests

on the mistaken advice of his lawyers, not coercive

conduct by law-enforcement officers. “[C]oercive police

activity is a necessary predicate to [a] finding that a

confession is not voluntary within the meaning of the

Due Process Clause of the Fourteenth Amendment.”

United States v. Huerta, 239 F.3d 865, 871 (7th Cir. 2001)

(internal quotation marks omitted); see also Schneckloth

v. Bustamonte, 412 U.S. 218, 226 (1973). Even “[t]he

most outrageous behavior by a private party seeking to

secure evidence against a defendant does not make that

evidence inadmissible under the Due Process Clause.”

Colorado v. Connelly, 479 U.S. 157, 166 (1986). This principle

is hornbook law:

No. 11-1369 9

Coercive police activity is a necessary predicate to

finding that a confession is not “voluntary” within

the meaning of the Due Process Clause. Although a

defendant’s mental condition may be a significant

factor in the “voluntariness calculus,” this does not

justify a conclusion that his mental condition, by

itself and apart from its relation to official coercion,

should ever dispose of the inquiry into constitu-

tional “voluntariness.”

2A C HARLES A LAN W RIGHT & P ETER J. H ENNING , F EDERAL

P RACTICE AND P ROCEDURE § 414, at 162 (4th ed. 2009).

Simply put, there was no coercive police activity here.

Neither the state prosecutor nor the John Doe investi-

gators made any threats or false promises of leniency

to obtain Stadfeld’s statements. They did not resort to

subterfuge or deceptive interrogation tactics to get him

to talk. In exchange for a complete and truthful

statement to the John Doe investigators, the state pros-

ecutor promised not to prosecute Stadfeld but made

no representations about a federal prosecution. The

suggestion that the state prosecutor’s oral nonprosecu-

tion agreement gave Stadfeld complete immunity—

including immunity from federal prosecution—came

from his own lawyers, not a government agent.

Stadfeld concedes the point and instead takes a

different tack. Citing United States v. Cahill, 920 F.2d 421

(7th. Cir. 1990), and United States v. Cichon, 48 F.3d 269

(7th Cir. 1995), he argues that the government can be held

to a promise of immunity it did not actually make—even

absent official misconduct—if (1) the defendant genuinely

10 No. 11-1369

believed that the government made the promise; and

(2) the belief was objectively reasonable. This is an ex-

travagant misreading of Cahill and Cichon.

Cahill involved a prosecution for mail fraud, wire

fraud, and several other federal offenses arising out of the

collapse of a thrift-savings institution insured by the

FDIC. 920 F.2d at 422-23. Federal regulators evaluating

the collapse looked into the thrift’s relationship with a

mortgage company run by the defendant Cahill. Id.

Although an Assistant United States Attorney initially

assured Cahill that he was not the target of an ongoing

criminal investigation, federal authorities eventually

came to believe that Cahill was involved in the thrift’s

collapse. Id. at 423-24. The prosecutor told Cahill that

immunity was not appropriate under the circumstances

and suggested that if he wanted to cooperate, he could

make a proffer. Id. at 424. Cahill agreed to do so and was

later indicted. Id. He moved to suppress the use of his

statements, insisting that he had been granted immunity,

or alternatively, that his statements were involuntary

because they were induced by a false promise of im-

munity. Id. at 425.

The district court rejected these arguments, crediting

the Assistant U.S. Attorney’s testimony that he never

offered Cahill immunity. Id. at 426. We affirmed this fact-

specific holding. Id. at 427. There was no evidence that

Cahill had been granted immunity, nor any support for

his claim that his statements were made under a “percep-

tion,” wrongfully induced by the prosecutor, that he

had been granted immunity. Id. On this latter point, we

No. 11-1369 11

observed that “[a] defendant’s perception that he is

providing testimony under a grant of immunity does

not make his statement involuntary, unless the percep-

tion was reasonable.” Id. (citing United States v. Shears,

762 F.2d 397, 401-03 (4th Cir. 1985)). To the extent that

Cahill “perceived” that he had immunity, we held

that “[the] perception was unreasonable.” Id.

Stadfeld seems to think that Cahill stands for the proposi-

tion that a defendant’s statement can be deemed involun-

tary and thus subject to suppression even in the absence

of evidence of coercive tactics by law enforcement. Not

true. To the contrary, Cahill relied on a Fourth Circuit

decision that followed the norm of deciding a motion

to suppress by asking whether the police engaged in

coercive conduct to overcome the defendant’s free will.

See Shears, 762 F.2d at 402 (“[T]he defendant’s percep-

tion of what government agents have promised is an

important factor in determining voluntariness.”). Nothing

in Cahill signals any departure from well-established

voluntariness doctrine.

Stadfeld also misunderstands Cichon. That case also

involved a defendant’s effort to suppress the use of his

statements based on a claim that government agents

falsely promised him immunity. 48 F.3d at 275-76. As in

Cahill, the district court rejected the claim because it was

factually unsupported, and we affirmed. Id. at 276 (“The

district court also made it clear that it disbelieved

Mr. Cichon’s testimony that he was promised immunity.”).

Neither Cichon nor Cahill supports Stadfeld’s argument

that his statements can be deemed involuntary in the

absence of coercive conduct by government agents.

12 No. 11-1369

In the alternative, Stadfeld argues that his statements

to the John Doe investigators should have been sup-

pressed under Strickland v. Washington, 466 U.S. 688 (1984),

as the product of the ineffective assistance of his counsel.

This argument overlooks the basic principle that a Sixth

Amendment ineffective-assistance-of-counsel claim is

viable only after the right to counsel attaches, which takes

place “at or after the initiation of adversary judicial

criminal proceedings—whether by way of formal charge,

preliminary hearing, indictment, information, or arraign-

ment.” Kirby v. Illinois, 406 U.S. 682, 689 (1972). Here,

Stadfeld agreed to talk to the police informally, in lieu

of appearing before the John Doe judge, long before the

initiation of adversary judicial criminal proceedings.

A John Doe is a special investigative proceeding

that developed as a feature in Wisconsin criminal law in

the late nineteenth century under a statute that allowed

a magistrate to examine witnesses under oath after re-

ceiving a complaint that a crime had been committed. See

Washington, 266 N.W.2d at 603 (describing the statutory

history). A John Doe is “not so much a procedure for

the determination of probable cause as it is an inquest

for the discovery of crime in which the judge has sig-

nificant powers,” including the ability to subpoena wit-

nesses. Id. at 604. A John Doe proceeding does not

begin the adversarial process against a criminal accused.

Rather, the role of the John Doe is to gather evidence from

witnesses in order to determine whether a criminal com-

plaint should be filed or whether no crime was com-

mitted. Id. at 605. See also In re John Doe Proceeding, 660

N.W.2d at 275-76; id. at 286-87 (Sykes, J., dissenting)

No. 11-1369 13

(explaining the role and limits of a John Doe judge’s

power).

Accordingly, the John Doe investigation into Mortier’s

disappearance was not the beginning of the ad-

versarial criminal process against Stadfeld. Although

the John Doe statute permits witnesses to have counsel

present during their testimony, the proceeding remains

nonadversarial and counsel’s role is strictly limited. See

W IS. S TAT. § 968.26(3) (stating that “counsel shall not be

allowed to examine his or her client, cross-examine

other witnesses, or argue before the judge”). Stadfeld’s

receipt of a John Doe subpoena did not trigger his Sixth

Amendment right to counsel. Because his constitutional

right to counsel had not attached when he gave his state-

ments to investigators, there is no basis for a claim of

ineffective assistance of counsel.

Finally, we agree with the district court that to what-

ever extent Stadfeld thought he had a comprehensive

immunity agreement, it was conditional. Any reasonable

belief in a promise of immunity vanished when he know-

ingly lied to investigators. Stadfeld was not entitled to

the remedy of suppression.

B. Stadfeld’s Evidentiary Challenges

1. Evidence of Mortier’s Disappearance and the John Doe

We review a district court’s evidentiary rulings for abuse

of discretion. United States v. Penaloza, 648 F.3d 539, 544

(7th Cir. 2011). Stadfeld argues that the district court

abused its discretion by refusing to allow any evidence

14 No. 11-1369

of Mortier’s disappearance and the John Doe investiga-

tion. Although Stadfeld’s attorneys initially moved to

exclude this evidence, they later withdrew that motion

and asked the court to allow it, arguing that the evidence

was relevant to the credibility of the coconspirators

who would be testifying against Stadfeld. Their theory

was that the coconspirators had a motive to lie to deflect

attention away from themselves in the John Doe.

Before addressing the merits of this argument, we

note first that the government maintains that Stadfeld

waived any objection to the court’s ruling excluding this

evidence. That is incorrect. Near the end of the final

pretrial hearing, after the court had denied the motion

to admit evidence of the John Doe, Stadfeld’s attorney

asked the court for permission to refer to “another in-

vestigation” when questioning the witnesses. The court

agreed. This was not a waiver, as the government con-

tends, but merely an adaptation to an adverse evi-

dentiary ruling made by the district court. Cf. Wilson

v. Williams, 182 F.3d 562, 564 (7th Cir. 1999) (en banc)

(holding that adaptation to adverse ruling on motion in

limine did not waive established objection).

On the merits, however, the district court’s decision to

exclude this evidence was entirely sound. Admitting

evidence about Mortimer’s disappearance and the John

Doe would have taken the trial far afield from the

charged crime involving the marijuana-trafficking con-

spiracy. Excluding this evidence did not seriously inhibit

Stadfeld’s ability to cross-examine the coconspirators

to expose their self-interest. Counsel was permitted

No. 11-1369 15

to—and did—cross-examine the coconspirators based on

their testimony in “another investigation” and used this

line of inquiry to attack their credibility. The district

court did not abuse its discretion in excluding this evi-

dence.

2. Request To Inspect Detective Sheil-Morgan’s Interview

Notes

Stadfeld contends that his inability to obtain Detective

Sheil-Morgan’s interview notes prevented him from

attacking her credibility and deprived him of important

information about what was said during the police inter-

views. He has not identified any reason to suspect that

the detective’s interview notes are inconsistent with her

written reports. Nor does he cite any legal authority—no

evidentiary rule, no discovery rule, no case—to support

this claim of error. Undeveloped arguments are con-

sidered waived. Gross v. Town of Cicero, Ill., 619 F.3d 697,

704 (7th Cir. 2010) (“[I]t is not this court’s responsibility

to research and construct the parties’ arguments, and

conclusory analysis will be construed as waiver.” (quota-

tion marks omitted)).

C. Relevant-Conduct Findings

Finally, Stadfeld challenges the district court’s fact-

finding regarding the scope of his jointly undertaken

criminal activity for purposes of estimating drug quantity

at sentencing. We review the district court’s sentencing

findings for clear error. United States v. Edwards, 115 F.3d

16 No. 11-1369

1322, 1325 (7th Cir. 1997). A factual finding is clearly

erroneous when the court “is left ‘with a definite and

firm conviction that a mistake has been committed.’ ” Id.

(quoting United States v. Herrera, 54 F.3d 348, 356 (7th Cir.

1995)). “ ‘[I]f two permissible views exist, the fact-finder’s

choice between them cannot be clearly erroneous.’ ” United

States v. Taylor, 72 F.3d 533, 546 (7th Cir. 1995) (quoting

United States v. McDonald, 22 F.3d 139, 144 (7th Cir. 1994)).

To determine drug quantity for purposes of relevant-

conduct analysis in a conspiracy case, the district court

must first determine the scope of the criminal activity

the defendant agreed to jointly undertake. See U.S.S.G.

§ 1B1.3(a)(1)(B); United States v. Salem (Salem I), 597 F.3d

877, 886 (7th Cir. 2010). We have said that several factors

are relevant: (1) the existence of a single scheme;

(2) similarities in modus operandi; (3) coordination of

activities among schemers; (4) pooling of resources or

profits; (5) knowledge of the details of the scheme; and

(6) length and degree of the defendant’s participation in

the scheme. United States v. Salem (Salem II), 657 F.3d

560, 564 (7th Cir. 2011).2

2

The district court’s assessment of these factors is not the end

of the relevant-conduct analysis. After determining the scope of

jointly undertaken criminal activity, “the court must make a

two-part determination of whether the conduct of others was

both in furtherance of that joint criminal activity and reason-

ably foreseeable to the defendant in connection with the

joint criminal activity.” United States v. Salem (Salem I), 597 F.3d

877, 886 (7th Cir. 2010) (citing United States v. Fox, 548 F.3d

(continued...)

No. 11-1369 17

Here, the district court first determined that the

scope of Stadfeld’s jointly undertaken criminal activity

included the regular receipt by the Mortier organization of

large deliveries of marijuana—about 100 pounds per

month— from Canada through New York for distribution

in and around Madison. The court also determined that

the marijuana typically arrived in Madison in private

cars, was generally offloaded at Mortier’s residence, and

then fronted to lower-level dealers like Stadfeld for

further distribution. The court found that Stadfeld was

aware of the specific details of the conspiracy and its

method of operation, including the source of the drugs,

the methods of packaging and delivery, delivery quanti-

ties, and the names of other street-level marijuana dis-

tributors supplied by Mortier.

Stadfeld argues that these findings are insufficiently

particularized to support the court’s determination that

the scope of the criminal activity he jointly agreed to

undertake was coextensive with the entire marijuana-

2

(...continued)

523, 532 (7th Cir. 2008)). The sentencing guidelines provide

that a defendant is accountable for the jointly undertaken

criminal conduct of others, provided the conduct is: (1) in

furtherance of the jointly undertaken criminal activity; and

(2) is reasonably foreseeable in connection with that criminal

activity. U.S.S.G. § 1B1.3 cmt. n.2. Here, Stadfeld argues only

that the district court failed to make sufficiently particularized

findings regarding the scope of his jointly undertaken agree-

ment. He does not challenge the other steps in the court’s

analysis.

18 No. 11-1369

trafficking conspiracy during the relevant time period.

We disagree. The court’s findings, though not ac-

companied by lengthy analysis, were easily sufficient and

basically tracked the knowledge and modus operandi

factors identified in our decision in Salem II. The district

court also observed as a more general matter that the

evidence at trial supported the existence of a single

scheme and demonstrated substantial coordination of

activities by and among the coconspirators, including

Stadfeld. See id. Finally, the court noted that Stadfeld was

involved in the conspiracy for more than four years—from

2000 to 2004—easily long enough to support the conclu-

sion that he “agreed to advance the goals of the entire

scheme and [is] thus accountable for jointly under-

taken activity.” Id. at 565. The district court’s findings

regarding the scope of Stadfeld’s jointly undertaken

criminal activity were not clearly erroneous.

A FFIRMED.

7-27-12