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United States v. Price

March 27, 2008


Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:04-CR-81-Philip P. Simon, Judge.

The opinion of the court was delivered by: Wood, Circuit Judge.


Before POSNER, WOOD, and SYKES, Circuit Judges.

When Officer Terry Smith of the Gary, Indiana, police department responded to a call on June 28, 2003, about fires that people were setting in alleys located in a high-crime area, he stopped to question Veronica Sanchez, whose car was parked nearby. As Officer Smith spoke with Sanchez, Benjamin Price strolled past him, said nothing, and sat down in the passenger side of Sanchez's car. It was not long before Smith and another officer discovered a gun in the car, near Price's feet. In due course, Price was indicted on charges of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(e)(1). After a number of false starts, which we describe below, he was tried, convicted by a jury, and sentenced to 250 months in prison. Appointed counsel on appeal have raised a number of challenges both to his conviction and to his sentence. While we appreciate their efforts, we find no reversible error and thus we affirm.


Price's encounter with Officer Smith and his colleagues was far from his first brush with the law. By 2003, his rap sheet included the following felony convictions: Burglary, Cook County (Illinois) 1986; Burglary, Cook County 1986; Criminal recklessness, Lake County 1990; Possession of cocaine, Lake County 1990; Possession of a handgun, Lake County 1993; Possession of heroin, Lake County 1994; Criminal recklessness while armed, Lake County 1996; and Possession with intent to deliver a controlled substance, Cook County 1997. In addition to these convictions, he had some 20 additional arrests from 1981 through 2003, according to the presentence report. The fact that three of these prior offenses involved controlled substances accounts for the charge under 18 U.S.C. § 924(e)(1), which enhances penalties for such recidivists.

The primary facts that are pertinent to Price's appeal are those that relate to his motion to suppress. According to the police officers, after Price got into Sanchez's car, Officer Justin Illyes approached and asked Price to get out. As Price was doing so, Officer Illyes noticed a white towel with the butt of a gun protruding on the floorboard by the passenger seat. Officers Smith and Illyes handcuffed both Sanchez and Price, who were arguing over whose gun it was. Officer Illyes testified that at some point during this exchange, Price admitted that the gun was his, that he was a convicted felon, and that he was not allowed to possess a gun. Officer Illyes then took Price into custody, while Smith gave Sanchez a ticket for obstructing the alley. Either Illyes or Smith (the testimony was unclear) took Price into the police station.

Sanchez disputed many of these facts, including the race and sex of the police officer who initially approached her, the words that the officer spoke to her, when the gun was discovered, and when Price first arrived. Price denied that he ever admitted that the gun was his. Instead, he testified that he arrived on the scene only after the gun had been seized. In any event, after Price's arrest, the Gary Police released him from custody, and he went to Florida. After the federal charges were filed against him, he was arrested in that state, and two federal agents spoke with him. During that conversation, he admitted again that he had acknowledged that the gun belonged to him.

The district court held a suppression hearing on April 22, 2005, which resulted in a written order issued on April 29, 2005, denying the motion to suppress. Much later, and after several intervening procedural steps (including the start of a jury trial, a resulting mistrial, and a flurry of motions from both sides), the district court decided in March of 2006 to reopen the suppression hearing to give Price the opportunity to present additional testimony. At the reopened hearing, which took place on April 5, 2006, Price questioned Foster Ward, a member of the Gary Police Department, about his acquaintance with Sanchez. Ward testified that he did not know her. At the conclusion of the hearing, the court stood by its initial decision to deny the motion to suppress, explaining in essence that it found the testimony of the officers to be more credible than the account that Price and Sanchez offered.

A week after the hearing, the government filed a motion in limine seeking to bar any evidence that Ward actually did know Sanchez and had been in a sexual relationship with her, and that he had told Sanchez that he intended to lie under oath and claim that he did not know her. Price filed a motion for a continuance, hoping to explore this perjury, but the district court denied the motion, finding that this was a peripheral matter that did not justify further delay of the trial. Later, Price subpoenaed Ward to appear at trial, but Ward failed to show up. In Ward's absence, the district court allowed Ward's testimony to be read into the record. Price also wanted to call Detective Keith Richardson at the suppression hearing, because he believed that Richardson could offer exculpatory evidence. The court refused to call him at that time, but it ruled that Price was free to call Richardson at the trial. When the time came, however, the court changed its mind and barred Richardson from testifying.

The other part of the story on which the appeal turns concerns Price's zig-zags between accepting the representation of a series of lawyers and proceeding pro se. Immediately after Price was indicted, Public Defender John Martin entered an appearance for him on October 25, 2004. A short time later, Price moved to represent himself with standby counsel. Magistrate Judge Rodovich carefully warned Price of the pitfalls of that course of action, but Price persisted and the judge granted the motion. Less than a month later, on December 13, 2004, Price moved to substitute a new attorney and to withdraw his request to proceed pro se. The court acquiesced, and on January 7, 2005, it appointed Attorney Arlington J. Foley to represent Price. Foley worked diligently for several months, filing motions on Price's behalf, but Price wrote a number of letters to the court expressing his dissatisfaction with Foley. Price even went so far as to forward a copy of one of his letters to the Indiana Disciplinary Committee; at that point, the district court intervened and held a hearing on April 5, 2005, on the topic of Foley's representation. Everyone agreed that Foley would stick with the case, but on the first day of the initial trial, May 2, 2005, Price complained repeatedly about Foley. After the jury was selected and sworn in, Price renewed his complaints. The court finally offered Price the options of proceeding in the current trial with Foley, proceeding pro se with Foley as standby counsel, or accepting a mistrial and securing new counsel. After an overnight recess at the govern-ment's request, Price expressly consented to the mistrial. The court granted the mistrial on two grounds: Price's consent and its finding that there was a manifest necessity for a mistrial because of Price's lack of participation in the jury selection process. At that point, the court appointed Charles Stewart to represent Price.

Only three weeks later, on May 25, 2005, Price announced again that he wished to proceed pro se. The court agreed and designated Stewart as standby counsel, over Price's objection. It refused at that point to recruit yet a fourth lawyer. From May 31, 2005, until the second trial was over, Price peppered this court with interlocutory appeals, six by our count. Eventually, we entered an order sanctioning him $500 for his frivolous filings. Price was still appearing pro se when his second trial began, but on Day 2, Stewart took over and completed the trial. After the jury returned a guilty verdict, Stewart moved to withdraw as counsel. The court granted that motion and appointed Kevin Milner to handle Price's sentencing. Largely because of his lengthy criminal record, Price received a sentence of 250 months, a point in the lower third of the applicable range of 235 to 293 months. Milner filed a Notice of Appeal on Price's behalf, but he then asked this court to relieve him of his responsibility for the case. We granted that motion on December 12, 2006, and appointed Attorney Nancy Riley to represent Price on appeal; she has done so conscientiously.


Price raises four challenges to his conviction, one to his sentence, and a general complaint that the cumulative effect of the alleged errors rendered the proceeding fundamentally unfair. Briefly, with respect to the conviction he claims that his double jeopardy rights were violated when the court granted the mistrial and proceeded with the second trial; that the court erred when it refused to allow him time to investigate Officer Ward's perjury; that the court erred when it barred Detective Richardson from testifying at trial; and finally, that the government failed to disclose potentially exculpatory material, in violation of his rights under Brady v. Maryland, 373 U.S. 83 (1963). Even if none of these alone warrants reversal, he continues, cumulatively they add up to a constitutionally deficient proceeding. With ...

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