Appeal from the United States District Court for the Western District of Wisconsin. No. 10-CR-134--William M. Conley, Chief Judge.
The opinion of the court was delivered by: Kanne, Circuit Judge.
Before KANNE, WOOD, and TINDER, Circuit Judges.
Beginning in 2007, Eric E. Garvey conspired with four others to transport and sell stolen property along the Minnesota-Wisconsin border. At Garvey's trial, all four co-conspirators testified against him. On appeal, Garvey alleges that the district court's misstatement of its subpoena power prevented him from calling a witness to impeach one of those co-conspirators. Garvey also claims that the district court erred in denying his motion for a mistrial after the prosecutor's questioning prompted a witness to declare that he smoked marijuana with Garvey. For the following reasons, we affirm Garvey's conviction.
From July 2007 to February 2009, Garvey and four co-conspirators engaged in a scheme to steal lawnmowers, tractors, trucks, ATVs, snowmobiles, and trailers along the Minnesota-Wisconsin border and then transport and sell these stolen items to various buyers. Two of Garvey's co-conspirators, Toby Thomas and Jeff Olson, were responsible for stealing the items. On the other end, Chad Wyttenbach and Victor Trejo assisted in storing and selling the stolen property. At various times, Garvey was involved in stealing, transporting, and selling the stolen items. Garvey was charged with one count of conspiring to transport, possess, sell, and dispose of stolen vehicles and goods in interstate commerce, in violation of 18 U.S.C. §§ 2, 371, and eight counts of theft, transportation, or sale of specific stolen vehicles or goods in interstate commerce, in violation of 18 U.S.C. §§ 2312-15.
All four co-conspirators pled guilty and agreed to testify against Garvey at trial, but for purposes of this appeal, we need only discuss the testimony of Wyttenbach and Thomas. Wyttenbach bought stolen John Deere lawnmowers and tractors from Garvey and sold them to four separate buyers. Wyttenbach testified that he gained neither profit nor anything else of value from these transactions. One of his buyers was Justin Hoopman. Wyttenbach arranged for Hoopman to purchase a small lawn tractor from Garvey for $2,000.
Wyttenbach transported the tractor to Hoopman's residence and left Hoopman's payment at an arranged place for Garvey to retrieve.
On cross-examination, Garvey's counsel impeached Wyttenbach by pointing out several glaring inconsistencies between his testimony and statements he gave to police officers during their investigation. Garvey's counsel also questioned Wyttenbach's motive to protect himself and his friends, especially in light of the officers' increasing threats about the potential consequences Wyttenbach faced for his own unlawful acts. Wyttenbach freely admitted that he tried to downplay his role and lied to police officers on more than one occasion.
Garvey's counsel had also planned to call Hoopman as an impeachment witness. According to Garvey, Hoopman would have testified that Wyttenbach requested $5,000 for the small lawn tractor, contrary to Wyttenbach's testimony that he never profited from the scheme. *fn1 Unfortunately for Garvey, Hoopman had not yet been served with a subpoena on the Friday before Garvey's trial was to begin on Monday. Upon learning of this problem on Friday, the district judge stated that Garvey could not subpoena Hoopman in any event because Hoopman, who resided in Connecticut, fell outside of the court's one-hundred-mile jurisdiction for subpoenas. On Monday morning, the district judge corrected himself, informing counsel that his subpoena power was nationwide and Garvey was free to attempt to subpoena Hoopman again. Hoopman was eventually served on Wednesday but did not testify and, therefore, could not impeach Wyttenbach's testimony.
Co-conspirator Thomas testified against Garvey on the second day of trial. Prior to trial, the district court granted a motion in limine preventing the government from introducing any evidence of Garvey's drug use or sales. Thomas was specifically admonished not to mention any drug use or transactions. Despite these instructions, Thomas testified:
Q: In May of 2007, were you associating with
Q: And what sort of things were you doing