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United States of America v. Matthew A. Turner

July 11, 2011

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
MATTHEW A. TURNER, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of Illinois. No. 4:07-cr-40084-MMM-JAG-Michael M. Mihm, Judge.

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

ARGUED MARCH 28, 2011

Before KANNE, SYKES, and HAMILTON, Circuit Judges.

In January 2009, a jury convicted Matthew A. Turner for conspiracy to possess and distribute at least five kilograms of cocaine and at least fifty grams of crack cocaine, and for possession of a firearm in furtherance of a drug trafficking offense. Turner raises two issues on appeal, each for the first time. First, he contends that he was wrongfully deprived of his Sixth Amendment right to counsel of his choice when the district court disqualified his retained attorney from the case. Second, Turner complains that the prosecutor's comments during closing argument invited the jury to draw an improper inference from the evidence and amounted to prosecutorial misconduct. We affirm. The district court did not plainly err by dis-qualifying Turner's attorney for a conflict of interest or by allowing the prosecutor's remarks, without objection, during closing argument.

I. Factual and Procedural Background

We recount the facts in the light most favorable to the jury's verdict. See United States v. Hill, 552 F.3d 541, 543 n.1 (7th Cir. 2008). In September 2007, police monitoring a controlled drug delivery arrested defendant Turner and four others at a home on the south side of Chicago. Police obtained valid consent to search the house. Beneath the bathroom cabinets and kitchen sink they found large quantities of crack and powder cocaine, a large amount of cash, drug paraphernalia, cocaine packaging materials, and two firearms.

Turner and the others were indicted in the Central District of Illinois for conspiracy to possess and distribute at least five kilograms of cocaine. Turner retained a private defense attorney, Steven C. Rueckert. In August 2008, however, the district court disqualified attorney Rueckert in response to the government's "Notice of Potential Conflict of Interest." Turner was then assigned court-appointed counsel.

The case proceeded, and by October 2008 Turner faced a second superseding indictment charging him with Count I, conspiracy to possess and distribute at least five kilograms of cocaine and more than fifty grams of crack cocaine, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and Count II, use of a firearm in furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c)(1)(A).

By the time of trial, Turner's four co-defendants had all pled guilty. Three of them testified about Turner's involvement in the cocaine trade, and the government presented additional physical evidence, as well as evidence of Turner's unexplained wealth. Turner took the stand on his own behalf. He testified that he had been involved in the cocaine trade but had stopped dealing just before the period charged in the indictment. Turner also called several character witnesses to testify that they had never seen him with drugs or a gun. During closing argument, Turner argued that his co-conspirators were using him as a patsy in order to obtain favorable treatment. The government responded by attacking Turner's credibility, characterizing his testimony about leaving the drug business shortly before the charged conspiracy began as "too convenient to be believed."

The jury found Turner guilty on both counts of the second superseding indictment. The district court sentenced Turner to life imprisonment on the cocaine charge and sixty months on the firearm charge. Turner appeals his convictions.

II. Discussion

A. Sixth Amendment Right to Counsel of Choice

Turner's first argument is that the disqualification of his retained attorney violated his Sixth Amendment right to be represented by counsel of his choice. We find no reversible error. Turner forfeited the issue, and the district court did not plainly err by removing attorney Rueckert from the case.

1. The Facts

Attorney Rueckert represented Turner until the district court disqualified Rueckert in response to the government's "Notice of Potential Conflict of Interest," filed in August 2008. The government had learned that Turner, who had not been gainfully employed for some time, obtained Rueckert's services by paying him $25,000 in cash, delivered by Turner's girlfriend while he was in jail. Intending to make an issue of Turner's unexplained wealth, including the attorney fee paid in cash, the government argued that Rueckert had landed "front and center as a witness in this case" and therefore could not continue to represent Turner. At a pretrial hearing held on August 13, 2008, the district judge raised the issue with the parties. After the government stated its position for the record, the following exchange occurred:

THE COURT: Do I understand correctly you plan to call Mr. Rueckert as a witness?

[GOVERNMENT]: Yes.

THE COURT: I mean, obviously if you're permitted to do that, then he can't represent Mr. Turner. That's the bottom line. Mr. Rueckert, ...


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