Appeal from the United States District Court for the Southern District of Illinois. No. 3:08 CR 30066-001-GPM-G. Patrick Murphy, Judge.
The opinion of the court was delivered by: Wood, Circuit Judge
ARGUED SEPTEMBER 11, 2009
Before EASTERBROOK, Chief Judge, and POSNER and WOOD, Circuit Judges.
Kevin Cooper was a heroin dealer who operated out of the Centralia area in southern Illinois. Eventually the police caught up with him, and he was charged and convicted of conspiring to distribute and possess with intent to distribute more than 100 grams of heroin, in violation of 21 U.S.C. § 846. On appeal, he challenges both his conviction and his sentence. He asserts that he is entitled to a new trial because of the way that the district court handled his request for self-representation, the fact that he was shackled throughout the trial, and the court's failure to exclude certain inflammatory evidence. Even if the conviction stands, he argues, his life sentence was unreasonable, because the court placed too much weight on various deaths that were attributable to his heroin sales. Although we are inclined to agree with Cooper that some errors were made, we are satisfied that they were harmless. We therefore affirm.
The Centralia police first learned about Cooper and his drug trafficking activities in late 2005. Two years later, police officials caught a lucky break when they arrested Brandon Shelton, a heroin addict, for shoplifting. Shelton volunteered to help the police by purchasing drugs from Cooper. They gave him $600 in prerecorded currency and monitored him while he went to a trailer that Cooper used. Shelton entered and emerged 10 minutes later with 1.7 grams of heroin. Shelton promptly turned the heroin over to the police officers in charge. Other officers then entered the trailer, where they found Cooper and two other people. They searched the trailer and found drug paraphernalia and a small amount of heroin. A search of Cooper turned up the prerecorded cash that Shelton had used. The police then arrested Cooper, and in April 2008 he was indicted on the federal charges mentioned earlier.
Initially, Cooper proceeded with an appointed lawyer, Rodney Holmes. Apparently he was unhappy with Holmes, and so at a pretrial hearing held on June 18, 2008, he asked the court to dismiss Holmes and to permit him to proceed pro se. Although the court did not explore Cooper's reasons for his dissatisfaction with Holmes, it did ask him a series of questions relating to his request for self-representation. Included among those questions were inquiries about his understanding of the charges against him, his knowledge of possible penalties, any experience he had with self-representation, his education, and his knowledge of trial procedures. The court specifically mentioned the Federal Rules of Evidence and warned Cooper that it would not make exceptions on his behalf. It also told Cooper that it would furnish standby counsel to help him with legal questions. Finally, it cautioned Cooper about the risks of representing himself. Cooper, who noted that he had successfully represented himself in state court in a trial involving charges for attempted murder and aggravated battery, assured the court that he understood all of this and wanted to proceed on his own. The court never mentioned to Cooper that his legs might be shackled.
Although the record does not reflect why, Cooper's legs were shackled throughout the three-day trial. In order to conceal this fact from the jury, Cooper sat at a skirted table. He stood only when the jury entered and left the courtroom. Otherwise, to ensure that the jury did not see the shackles, he avoided moving around while questioning witnesses. He was unable to approach the bench when handling exhibits, and he gave his opening and closing arguments from a seated position.
At the trial, the government introduced a number of witnesses who testified that they had purchased heroin from Cooper, or that they had sold heroin to him, or that they had seen him selling to others. In general, it was the testimony from these witnesses that established Cooper as someone who had dealt in at least 100 grams of heroin, not just the 1.7 grams that Shelton had bought. These witnesses were themselves heavily involved in drugs, and many testified in the hope of securing lenience for themselves. The prosecutor also put the officers who were involved with Cooper's arrest on the stand. A forensic expert identified the substance that Shelton had purchased and the additional material found within the trailer as heroin. Finally, some cell phone records were introduced into evidence.
Some of the evidence was highly prejudicial to Cooper. Before trial, fearing that the government might bring up the fact that some of his buyers had died from heroin overdoses, Cooper moved to exclude autopsy reports of those deaths. The court agreed to do so, but at trial, it permitted the government to make a number of references to the deaths. Cooper objected repeatedly; at one point, referring to two of the fatalities (the Marler brothers), Cooper said " . . . from the autopsy report I read, there's six different types of drugs in the Marler brothers. Any one of them could have killed them. And as far as all this stuff, the government trying to do now, it's more prejudicial than probative." (Emphasis added). This was as clear an objection based on FED. R. EVID. 403 as we nor- mally see from a lawyer, and it was more than enough to preserve this point for appellate review.
The government managed to introduce evidence that not only the Marler brothers, but also Larry Burton, Brian Goodspeed, Newt Castellari, and Jessica Alsept had all died from heroin that Cooper sold to them. The court permitted another witness-someone who had been convicted of a drug-induced homicide-to testify about the fact that death could result from an overdose. When Cooper again objected, the government justified the inquiry by saying that it helped to show that he was distributing heroin and also that it showed the effect of that heroin. The court expressed concern about the relevance of the "effects" evidence and offered to give a limiting instruction. In the end, it did not follow up on that offer. Throughout these discussions the court was focusing only on the relevance of the evidence. It never addressed Cooper's objection based on prejudicial impact. Indeed, later the court permitted two witnesses to testify about Cooper's lack of remorse over the deaths. One witness recounted that Cooper said that he would have left one person's "body in a ditch."
Cooper called only two witnesses in his defense. The first was Allen Falls, who testified that he had performed landscape work with Cooper between April and August of 2007. Apparently Cooper was hoping to use Falls as an alibi witness, but if that was what he was doing, the effort was a flop. On cross-examination, Falls admitted that he had never been in Centralia with Cooper. The other witness was Amanda Dodillet, who had been with Cooper on the day of his arrest. On direct examination by Cooper, obviously under oath, Dodillet testified that Cooper had not sold heroin to her. She changed her story on cross-examination, however, and admitted that Cooper had given heroin to her as many as 40 to 50 times. The court eventually concluded that Cooper had pressured her to lie on direct.
After the jury convicted Cooper, the court ordered the preparation of a Presentence Investigation Report ("PSR"). The PSR assigned him a base offense level of 30, relying on evidence that he had handled between 700 grams and one kilogram of heroin. See U.S.S.G. § 2D1.1(c)(5). Four levels were added for his role in the offense, and then two more for obstruction of justice, bringing the total offense level up to 36. But the PSR writer concluded that Cooper was a career offender, see U.S.S.G. § 4B1.1(b), and so that was the guideline that dictated his final offense level (37) and his criminal history (VI). This produced a recommended guidelines range of 360 months to life.
At the sentencing hearing, the court heard victim-impact evidence from family members of those who had died from the overdoses. The government requested a life sentence, emphasizing the high cost of Cooper's criminal activity. The court properly noted that the guidelines are advisory and that it had discretion to impose a sentence as low as 10 years, but it then left no doubt about the way in which it wanted to exercise its discretion, saying "if there were no guidelines and if I have unfettered discretion, I would give you life." It justified that decision on several grounds. First, it noted that "in the teeth of all of this evidence [Cooper] still refuses to acknowledge what is eminently clear to any objective observer and that is that he just is guilty." It then acknowledged that a sentence should be no more than is necessary to accomplish the objectives of sentencing, but it found "the nature and the circumstances of this crime . . . startling." The court also found that Cooper (who was by then in his mid-50s) was incorrigible, and that anything less than a life sentence might make him think that he could get away with something. Putting that point in terms of 18 U.S.C. § ...