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United States v. Bender

August 13, 2008

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
VISHNU BENDER AND TONYJOHNSON, DEFENDANTS-APPELLANTS.



Appeals from the United States District Court for the Southern District of Indiana, Evansville Division. No. 04 CR 17. Richard L. Young, Judge.

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

ARGUED SEPTEMBER 13, 2007

Before EASTERBROOK, Chief Judge,and CUDAHY and SYKES, Circuit Judges.

Vishnu Bender and Tony Johnson were convicted of conspiracy to distribute cocaine, cocaine base, and marijuana stemming from their involvement in a drug-distribution network operating between Chicago and Evansville, Indiana. Bender challenges the sufficiency of the evidence of a conspiracy and also claims he was denied his counsel of choice in viola- tion of the Sixth Amendment. Johnson argues the district court improperly denied his motion for a new trial. That motion was premised on an alleged violation of the district court's witness-sequestration order. In support of the motion, Johnson submitted a letter from a jail inmate who claimed to have overheard some of the coconspirator-witnesses discussing the case in their jail cell and expressing a willingness to lie in order to get reduced sentences.

We affirm. The evidence of Bender's involvement in the charged drug conspiracy was overwhelming and included the usual array of intercepted telephone conversations, drug-seizure evidence, and extensive testimony from coconspirators regarding Bender's role in maintaining the wholesale flow of drugs from Chicago to Evansville. Regarding the Sixth Amendment claim, the attorney Bender wanted to represent him declined to do so once alerted by the government to a possible conflict of interest. Moreover, by the time of trial, the attorney's law license was suspended as a consequence of his own conviction on a drug charge. There was no Sixth Amendment violation.

Finally, Johnson's argument about an alleged violation of the sequestration order is misplaced. The court's order was entered pursuant to Rule 615 of the Federal Rules of Evidence, which permits the trial court to exclude witnesses from the courtroom "so that they cannot hear the testimony of other witnesses." There is no evidence suggesting that any of the coconspirator-witnesses conveyed the substance of their testimony to one another. Regardless, only one of the witnesses the inmate-informant allegedly overheard discussing the case in the jail actually testified about Johnson's involvement in the conspiracy; the testimony of the others pertained to Bender only. Johnson had ample opportunity at trial to cross-examine this witness about his motives and incentives for testifying.

I. Background

Bender and Johnson were indicted as a result of a coordinated federal, state, and local drug investigation centering on Evansville, Indiana. The original indictment named ten defendants. It alleged that in 2003-2004 Bender, operating out of Chicago, supplied large quantities of cocaine, cocaine base, and marijuana to Emanuel Cabell and Dennis Turner in Evansville, who in turn redistributed the drugs to Johnson, Eric McKinney, Jesha Fox, Ebon Green, John Culley, Andrew Owen, and Demarco Lane, all of whom resold the drugs to users in Evansville. The defendants were charged with conspiracy to distribute cocaine base, powder cocaine, and marijuana in violation of 21 U.S.C. §§ 841 and 846. All except Johnson and Bender pleaded guilty.

Bender was initially represented by appointed counsel but early on in the case retained Attorney David Scacchetti to represent him. Before Scacchetti entered an appearance, however, the government informed the district court that Scacchetti was then representing Robert Lee Johnson, another participant in the Evansville conspiracy, and that the dual representation might pose a conflict because Robert Lee Johnson might be added as a defendant by superseding indictment and also might eventually testify*fn1 into the potential conflict. The next day, Scacchetti advised the court that he had a conflict of interest and could not represent Bender. At the next status conference, Bender indicated that Scacchetti had withdrawn from his case but was assisting him in finding new counsel. Bender protested, however, that he did not understand the conflict. The following month Scacchetti was charged with possession of cocaine and voluntarily closed his law practice. A few months later-before the trial in this case commenced-Scacchetti pleaded guilty and agreed to a two-year suspension of his law license.

At the start of trial, the district court entered an order excluding witnesses from the courtroom during the testimony of other witnesses pursuant to Rule 615 of the Federal Rules of Evidence. At trial the jury heard testimony regarding the operation of the conspiracy from state and local law enforcement officers, agents of the Drug Enforcement Administration ("DEA"), and some of the coconspirators. The law enforcement officers and DEA agents testified that they observed Johnson sell drugs to an undercover informant and obtained wiretaps of conversations between Bender, Johnson, and other coconspirators. They testified that the intercepts indicated extensive use of code words by the conspirators in an effort to conceal their drug transactions. Coconspirator Dennis Turner, Bender's cousin, testified that Bender regularly sold large quantities of cocaine to him on credit against Bender. The court instructed Scacchetti to look and delivered the drugs through intermediaries for resale in Evansville. Fox, Lane, and Culley corroborated this testimony and also confirmed the agents' testimony about the meaning of the coded language heard on the wiretap intercepts. Fox also testified to receiving quantities of cocaine from Johnson for resale in Evansville. The jury found both defendants guilty.

Prior to sentencing, Johnson received a letter from Henry Hibbs, an inmate at the Henderson County Detention Center. In the letter Hibbs asserted that while sharing a holding cell at the jail, Culley, McKinney, Fox, and Lane had discussed the case and their desire to reduce their prison exposure and specifically indicated that they would say "whatever it takes" to get reduced sentences. Johnson moved for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure, arguing that Hibbs's letter was evidence that the witnesses had violated the court's sequestration order and expressed a willingness to lie on the witness stand.

The district court denied the motion, concluding there was no evidence that any witness had relayed the substance of his or another witness's testimony, and therefore no evidence of a violation of the sequestration order. The court noted that only Culley, Fox, and Lane had testified at trial, and that Culley and Lane did not testify to any facts pertaining to Johnson. The court concluded that to the extent the information in Bibbs's letter constituted "new evidence," it was cumulative because the coconspirator-witnesses had been fully cross-examined on their motives and incentives to testify. Finally, the court held that the evidence against Johnson was overwhelming, so the information in Bibbs's letter could not possibly have made a difference in the outcome. The court sentenced Johnson and Bender to the statutory mandatory term of life in prison.

II. Analysis

A. Sufficiency of the ...


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