Appeal from the United States District Court for the Western District of Wisconsin. No. 08-CR-138-BBC-2-Barbara B. Crabb, Judge.
The opinion of the court was delivered by: Sykes, Circuit Judge.
ARGUED SEPTEMBER 22, 2011
Before POSNER, FLAUM, and SYKES,Circuit Judges.
Amos Mortier was a major marijuana distributor with a network of street-level sellers in and around Madison, Wisconsin. He disappeared in November 2004, and the Dane County District Attorney's Office opened a John Doe proceeding to determine whether a crime had been committed. Prosecutors subpoenaed Mortier's known drug associates to testify in the John Doe.
Jacob Stadfeld was one of those dealers and received a subpoena in December 2004. Rather than appear before the John Doe judge, assert his right to remain silent, and follow the steps necessary to obtain formal immunity, he opted to talk to investigators informally in exchange for an oral non-prosecution agreement from the state prosecutor. Stadfeld's retained counsel mistakenly advised him that this non-prosecution agreement immunized him against the use of his statements by any prosecutor's office-state or federal. Almost four years later, based in part on his statements to the John Doe investigators, Stadfeld was indicted by a federal grand jury for conspiracy to distribute marijuana.
He moved to suppress the use of his statements, arguing that he spoke to investigators only because he was under the mistaken impression that he had full immunity. The district court denied the motion, holding that although Stadfeld got bad advice from his attorneys, neither the police nor the prosecutor had misled him, so his statements were not involuntary. The court also held that regardless of any misunderstanding about the scope of the non-prosecution agreement, Stadfeld breached it by lying to the investigators. Stadfeld was convicted by a jury and now appeals, raising several claims of error, but focusing primarily on the admission of his statements at trial.
We affirm. The district court properly denied the suppression motion. Stadfeld's statements were not the product of law-enforcement coercion, and the erroneous advice from his lawyers did not make his statements involuntary or inadmissible based on ineffective assistance of counsel. Moreover, to the extent that Stadfeld thought he had a comprehensive immunity agreement, it was conditioned on his telling the truth, and his failure to do so was a breach.
In November 2004, Mortier, a large-scale marijuana distributor, disappeared from his home in Fitchburg, Wisconsin, a small town just outside Madison. In response to his disappearance, the Dane County District Attorney's office opened a John Doe proceeding to investigate and determine whether a crime had been committed. See generally WIS. STAT. § 968.26. Prosecutors subpoenaed Mortier's known drug associates to testify in the John Doe. Some appeared before the John Doe judge, asserted their Fifth Amendment privilege against self-incrimination, and forced the prosecutor to ask the judge to convene as a court and grant formal immunity in order to compel their testimony. See id. §§ 968.26(3), 972.08(1); State v. Washington, 266 N.W.2d 597, 607-08 (Wis. 1978) (explaining the scope of the John Doe proceeding); see also In re John Doe Proceeding, 660 N.W.2d 260, 282-83 (Wis. 2003) (Sykes, J., dissenting) (explaining the limits on the John Doe judge's power). Stadfeld received a John Doe subpoena, but he did not follow that formal course. Instead, on the advice of his retained counsel, he agreed to talk to investigators informally.
In exchange for Stadfeld's informal cooperation, Assistant District Attorney Corey Stephan orally agreed not to prosecute him based on any statements he made about his involvement in Mortier's drug-distribution network provided that he gave a complete and truthful statement to investigators. Stadfeld's attorneys erroneously told him that Stephan's non-prosecution promise gave him complete immunity-not just from state prosecution but from the use of his statements in any prosecution against him, state or federal.
Stadfeld thereafter met several times with John Doe investigators, including Detective Shannan SheilMorgan of the Fitchburg Police Department. He gave the investigators a series of conflicting statements about Mortier's drug-trafficking activities and his own role in the marijuana distribution network dating back to 2000. In 2008 the United States Attorney for the Western District of Wisconsin used Stadfeld's statements to indict him for conspiracy to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846. Stadfeld moved to dismiss, or alternatively, to suppress the use of his statements against him at trial. He claimed that the statements were involuntary because he mistakenly believed, based on the erroneous advice of his counsel, that he had full immunity when he talked to the John Doe investigators.
A magistrate judge heard evidence and recommended that the district court deny both motions. In his report and recommendation, the magistrate judge found that Stadfeld's statements had not been induced by any coercive conduct on the part of the state prosecutor or the John Doe investigators. He also noted that to the extent Stadfeld relied on the mistaken advice of his counsel, he was not entitled to dismissal or suppression because he breached whatever immunity agreement he thought he had by lying to investigators in a number of material respects. The district court accepted the magistrate judge's recommendation and denied both motions.
Prior to trial Stadfeld moved to exclude any reference to Mortier's disappearance and the existence of the John Doe investigation, citing the possibility of inflammatory prejudice. At the final pretrial hearing, however,*fn1 Stadfeld's attorney withdrew the motion and asked the court to allow the admission of evidence of the John Doe on the theory that it was necessary to show the bias of several of the government's witnesses. In particular, Stadfeld wanted to argue that the alleged coconspirators falsely implicated him in the drug conspiracy to shift the focus off themselves in the John Doe. The court denied this request. Later, however, the court accepted defense counsel's request to refer generically to the existence of "another investigation" or a "different investigation" when questioning the witnesses.
At trial the government called Detective Sheil-Morgan to testify about the interviews with Stadfeld. During cross-examination, Stadfeld's counsel asked the detective if she could produce her interview notes. She testified that the notes were probably destroyed after she filed her formal reports memorializing the interviews. Stadfeld's attorney asked the court to order Sheil-Morgan to produce her notes. The judge told the detective to look for her notes during a court recess, but later reversed course. The government objected to the defense demand for the notes, pointing out that Sheil-Morgan's written reports had been produced during discovery, and there was no reason to think there was any discrepancy between her formal reports and the notes. The court sustained the objection and denied Stadfeld's request for production of the detective's interview notes.
The jury found Stadfeld guilty of conspiracy to distribute 100 or more kilograms of marijuana. At sentencing the court accepted the government's position that the total drug quantity for the conspiracy was at least 2,177 kilograms of marijuana (about 100 pounds per month for 48 months) and attributed the entire amount to Stadfeld in light of his intimate knowledge of the conspiracy and willingness to join it. More specifically, the court found that Stadfeld was aware of the source of the drugs, the means of transportation, the drug-pack- aging and delivery methods, the quantities customarily delivered, and the names of other marijuana distributors in the ...