Appeal from the United States District Court for the Central District of Illinois, Danville Division. No. CR 85-10045 -- Harold A. Baker, Judge.
Bauer, Chief Judge, and Posner, Circuit Judge, and Pell, Senior Circuit Judge.
Charles Lott appeals from his convictions for distribution and possession with intent to distribute phencyclidine (PCP) in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. He contends that the district court erred in allowing the government to use his preliminary hearing testimony to impeach him at trial because his retained counsel at the preliminary hearing was acting under a conflict of interest in violation of his Sixth Amendment right to the assistance of counsel. He also contends that the district court erred in admitting certain physical evidence, including the PCP involved, without adequate foundation and that, without that evidence, the government did not prove him guilty beyond a reasonable doubt. We reject his arguments and affirm his convictions.
On September 27, 1985, Chicago police officer Nathanial Reed, acting undercover and "wired" with a microphone, met with Lott to arrange an October 1, 1985 sale of one gallon of liquid PCP for $30,000, and two gallons of a diluting substance for $13,000. On October 1, the United States Drug Enforcement Administration (DEA), together with state and local police agencies, set up a surveillance operation at a Holiday Inn in Bradley, Illinois. That morning, Reed called Lott's beeper number and Lott returned Reed's call to say he needed a little time and would be at the Holiday Inn at 3:00 p.m. Later, at 3:10 p.m., when Reed called Lott again to inform Lott that Reed did not have all day, Lott said he would be at the motel shortly.
At 3:26 p.m., Lott met Reed in the lobby of the Holiday Inn. Lott said he did not have the PCP; he wanted to see Reed's money before he delivered it. After Reed took Lott to the Reed's motel room and showed him the money, Lott left to get the PCP. At 5:41 p.m., after Lott had informed Reed two more times that the PCP was on the way, Lott finally pulled up in front of the motel and motioned for Reed, who was standing in the doorway of the motel lobby, to follow him to the rear of the building. As Reed walked toward the rear of the motel, Lott's brother, Bishop, drove up behind Reed, and Bishop Lott and Reed had a brief conversation. Bishop Lott then parked his car directly in front of Reed's motel room.
At the rear of the Holiday Inn, Reed got into Charles Lott's car. Charles Lott stated that he had the PCP and pointed to a red gasoline can on the car's floor. Reed told Charles Lott that he wanted a sample. Reed took an eyedropper and mouthwash bottle from his jacket pocket, extracted some of the liquid from the can, and put it into the mouthwash bottle. Reed then told Charles Lott that he was going to have his chemist test the liquid before he handed over the money. As Reed got out of the car, he gave a prearranged arrest signal to the surveillance team, and that was that.
On October 2, 1985, both Charles and Bishop Lott were charged by complaint with conspiracy to distribute PCP. On October 8, 1985, Magistrate Kaufman held a preliminary detention hearing, at which attorney Earl L. Washington appeared on behalf of both Charles and Bishop Lott. Initially, Washington indicated that he would waive the preliminary hearing, but after a brief conversation with his clients, he decided to proceed. Following the government's evidence, Washington stated that he had no evidence to present on behalf of Charles or Bishop Lott, but after another brief conference with the Lott brothers, Washington told the court that Charles Lott would testify. Washington then questioned Charles Lott about his brother Bishop's involvement, or lack thereof, in the activities of October 1, 1985. After the Assistant United States Attorney conducted a brief cross-examination, Washington argued that although there probably was sufficient probable cause to hold Charles Lott over for trial, there was no probable cause to hold over Bishop Lott.
A grand jury thereafter returned a four-count indictment against both Charles and Bishop Lott, charging them with distribution, possession with intent to distribute, and conspiracy to possess with intent to distribute and to distribute PCP. On December 2, 1985, Charles Lott pled guilty to three counts, and subsequently was sentenced to concurrent ten-year prison terms on each count. The court dismissed the remaining count upon the government's motion. On June 4, 1987, however, the district court vacated Charles Lott's sentence and ordered that he be given a new trial, holding that Washington "failed to grant effective assistance of counsel to the defendant" at the preliminary hearing because Washington "had a direct conflict of interest in his dealings on behalf of the defendant. Before his new trial, Charles Lott moved to prevent the government from using his preliminary hearing testimony for impeachment purposes. The district court denied the motion. After another count against Charles Lott was dismissed upon the government's motion, the case was tried to a jury, which found Charles Lott guilty on the two remaining counts. During the trial, the government used Lott's preliminary testimony to impeach his direct testimony. Charles Lott was sentenced to concurrent ten-year sentences on each count.
Lott first contends that the district court erred in allowing the government to impeach him at trial with his testimony from the preliminary hearing, at which the government concedes he did not receive the effective assistance of counsel required under the Sixth Amendment. Lott argues that reversal is mandated by the Supreme Court's decision in New Jersey v. Portash, 440 U.S. 450, 59 L. Ed. 2d 501, 99 S. Ct. 1292 (1979). The government counters that Lott's preliminary hearing testimony was admissible to impeach Lott's direct testimony at trial under the antiperjury rationale of Harris v. New York, 401 U.S. 222, 28 L. Ed. 2d 1, 91 S. Ct. 643 (1971), and its progeny.
The Supreme Court first dealt with the use of illegally seized evidence to impeach a defendant's credibility in Walder v. United States, 347 U.S. 62, 98 L. Ed. 503, 74 S. Ct. 354 (1954). There, in upholding the use of evidence seized in violation of a defendant's ...