On appeal from The United States District Court for the Southern District of Indiana, Indianapolis Division ">

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Date: 11-14-2021

Case Style:

United States of America v. Richard Grundy, III

Case Number: Nos. 19-3476, 19-3481, 19-3484, 19-3537, 20-1113 & 20-1266


Court: United States Court of Appeals For the Seventh Circuit
On appeal from The United States District Court for the Southern District of Indiana, Indianapolis Division

Plaintiff's Attorney: United States Attorney’s Office

Defendant's Attorney:

Chicago, IL - Criminal defense Lawyer Directory


Chicago, IL- Criminal defense lawyer represented defendant with four counts of conspiracy to commit murder charge.

We provide the basic outline of Grundy’s network and the
procedural history of this case here, with more specific details
as needed for each defendant’s appeal. Because the co-conspirators’ appeals do not hinge on the substance of the conspiracy, we omit many of the details of the inner workings of
Grundy’s crew as presented during the trial.
A. Grundy and his Crew
Grundy has been of interest to law enforcement for years.
He has been arrested or indicted for, among other things,
murder and conspiracy to commit murder, though he was
never convicted of so serious a charge. As recently as 2015 or
Nos. 19-3476, et al. 3
2016, he had been indicted on four counts of conspiracy to
commit murder, but he ultimately pled guilty to a lower-level
state charge for marijuana distribution.
After his plea in the state case, Grundy pooled seed money
to restart his drug-trafficking network. Gilberto Vizcarra-Millan, who lived in Arizona, provided the drugs to Grundy. A
network of couriers, including defendant Undrae Moseby,
brought the drugs to Indiana.
Once the drugs arrived in Indianapolis, Grundy distributed them himself or via a network of wholesalers, including
David Carroll. These wholesalers then sold to retail dealers,
including Derek Atwater and James Beasley. Ezell Neville was
another associate of Grundy’s. The parties dispute the exact
nature of his relationship with Grundy, but he also sold
Grundy’s methamphetamine. All told, Grundy and his crew
brought at least 280 pounds of highly pure methamphetamine, as well as other drugs, to the streets of Indianapolis.
In May 2017, federal law enforcement obtained wiretaps
for the cell phones of crew members. FBI agents also coordinated controlled drug buys from Grundy’s dealers. Things
started to fall apart for the Grundy gang in August 2017. Law
enforcement seized over $84,000 in cash that was headed to
Vizcarra-Millan to purchase more drugs. Next, in September
2017, agents intercepted a phone call between Carroll and
Beasley discussing an upcoming methamphetamine deal.
Soon after Beasley purchased the methamphetamine, local
police stopped the car in which he was a passenger for a routine traffic violation. The officers smelled raw marijuana and
recovered drug paraphernalia while searching the car. A
search of Beasley’s person uncovered methamphetamine. The
driver of the car, Susan Koch, told the officers that Beasley
4 Nos. 19-3476, et al.
stored more methamphetamine in her home and gave her
consent for a search that recovered more methamphetamine.
On November 17, federal agents executed several search
warrants against members of the conspiracy. As relevant here,
they uncovered methamphetamine and drug-trafficking paraphernalia at Atwater’s house. They also raided what they believed to be the “clubhouse” of Grundy’s gang. Several members of the conspiracy were present, and the police collected
several cell phones, including two used by Moseby that contained incriminating evidence of his connection to the Grundy
B. Pretrial and Mistrial
In two separate cases, over two dozen members of
Grundy’s gang were charged with federal offenses, including
conspiracy to distribute drugs and money laundering. Most
defendants ultimately pled guilty. David Carroll, one of
Grundy’s key wholesalers, agreed to testify for the prosecution. Carroll’s attorney, John Tennyson, however, had also
been retained by Vizcarra-Millan, who was charged in the second, formally distinct but related case. The government
pointed out the potential conflict of interest—if Carroll were
to testify at trial (which he had agreed to do), he might incriminate Vizcarra-Millan. If he did, Tennyson’s duties to his respective clients would conflict. See Indiana Rule of Prof’l Conduct 1.7.
Two district judges held hearings to discuss the conflict
with Vizcarra-Millan and whether he wanted to waive it. At
the first hearing with Judge Barker, the potential conflict appeared both minor and unlikely to become actual, and Vizcarra-Millan said he would waive any conflict of interest.
Nos. 19-3476, et al. 5
When both of the Grundy cases were later consolidated before
Judge Magnus-Stinson, she also held a hearing that ended
with Vizcarra-Millan again waiving his right to unconflicted
But then, five weeks before trial, attorney Tennyson filed a
motion to withdraw the waiver because his client had rejected
the government’s plea offer and said he intended to go to trial.
Contrary to what he had told both judges months earlier, Tennyson now claimed his conflict of interest prohibited him
from adequately representing Vizcarra-Millan at all. Judge
Magnus-Stinson denied Tennyson’s motion without holding
a hearing. Vizcarra-Millan later pled guilty without a deal
from the government.
In the meantime, the district court had set a deadline in
February 2019 for filing motions to suppress evidence.
Months later, just days before trial, defendants Beasley and
Moseby submitted motions to suppress, styled as evidentiary
motions in limine. The district court denied both motions.
Trial got under way on July 8, 2019, in Indianapolis. The
court took the unusual step of empaneling an anonymous
jury after the government came forward with evidence of attempted witness tampering and intimidation. The court provided juror information to defense counsel but forbade the
defendants themselves from learning the jurors’ names or detailed personal information from which they could be identified. The first trial did not last long. By day three, the district
court learned that, despite the precautions, some defendants
had gotten their hands on this confidential information.
Moseby had written down the names of several jurors.
Grundy had obtained partially redacted juror questionnaires.
6 Nos. 19-3476, et al.
The district court declared a mistrial and moved the trial
venue to Evansville.
Between the mistrial and the second trial, Grundy moved
to represent himself. He wanted to pursue his own strategy,
but he also wanted standby counsel to help him with the nuts
and bolts of lawyering. The district court held a hearing that
ended when Grundy ultimately declined to waive his Sixth
Amendment right to counsel.
C. Second Trial and Posttrial Procedure
The second trial lasted three weeks. As relevant here, several co-conspirators testified against Grundy, implicating him
as the mastermind of this drug trafficking ring. The evidence
showed that Atwater, Beasley, and Neville all bought drugs
from Grundy or one of his associates. The details of each defendant’s relationship to Grundy’s network, however, varied
considerably, as did the circumstances of each documented
purchase. During the trial, Atwater also submitted another
late motion to suppress. The district court denied it, as well.
The jury found all defendants guilty on all counts. All defendants were found guilty of Count 1, conspiracy to distribute drugs. Neville was also convicted of conspiring to launder
a monetary instrument in connection with the seizure of more
than $84,000 from Grundy’s shipment of cash (Count 24), and
Beasley was convicted on two counts of possessing methamphetamine with intent to distribute (Counts 16 and 17).
The district court imposed a life sentence on Grundy. Atwater was sentenced to 216 months; Beasley was sentenced to
216 months, Moseby to 240 months, and Neville to 360
Nos. 19-3476, et al. 7
Vizcarra-Millan had pled guilty before the first trial. His
attorney, Tennyson, submitted both a sentencing memorandum and a motion to withdraw his guilty plea. The district
court held a hearing at which it first denied the withdrawal
motion and then sentenced Vizcarra-Millan to 300 months in
D. Issues on Appeal
On appeal, Grundy argues that the district court violated
his Sixth Amendment right to counsel by unduly discouraging him from exercising his right to represent himself. Vizcarra-Millan contends that his right to counsel was violated
by the district court’s failure either to disqualify Tennyson or
to grant his motion to withdraw his conflict waiver shortly
before trial.
Atwater, Beasley, and Moseby appeal the district court’s
denials of their respective motions to suppress. Atwater argues that the search of his home was not supported by probable cause. Beasley moved to suppress the evidence seized
during the traffic stop on the ground that the officers lacked
reasonable suspicion that the driver had committed a traffic
violation. Moseby objects to the government’s seizure of his
cell phones during the raid on Grundy’s clubhouse and its
search of those phones.
Finally, Atwater, Neville, and Beasley argue that the evidence did not support some of their convictions. All three say
that the evidence at trial was insufficient to rule out the possibility that they were merely buyers from Grundy’s gang, as
opposed to co-conspirators. Neville also challenges his
money-laundering conviction, and Beasley challenges his
8 Nos. 19-3476, et al.
conviction for constructively possessing the methamphetamine found at Koch’s home.
In Part II, we address and reject first Grundy’s and then
Vizcarra-Millan’s arguments that their Sixth Amendment
rights to counsel were violated. In Part III, we affirm the denials of the motions to suppress filed by Atwater, Beasley, and
Moseby. In Part IV, we address the sufficiency of the evidence
for Atwater, Neville, and Beasley, affirming all convictions except two of Beasley’s.
II. Right to Counsel: Grundy and Vizcarra-Millan
The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right … to have the assistance of counsel for his defense.” This constitutional command encompasses the accused’s right to choose his own
counsel, to have counsel free of conflicts of interest, and to
choose to forgo counsel and to represent himself.
Grundy, by invoking his right to represent himself, and
Vizcarra-Millan, by invoking his right to choose his own
counsel despite a conflict of interest, each put the district court
in a constitutional double-bind. No matter how a district court
decides each issue, the defendant will have an issue to appeal.
We have, for example, compared a district court’s navigation
of a request to proceed pro se to passing between Scylla and
Charybdis, see United States v. Sandles, 23 F.3d 1121, 1127 (7th
Cir. 1994), and similarly, “trial courts confronted with multiple representations face the prospect of being ‘whip-sawed’
by assertions of error no matter which way they rule.” Wheat
v. United States, 486 U.S. 153, 161 (1988); see also United States
v. Lowry, 971 F.2d 55, 60 (7th Cir. 1992) (quoting same and encouraging district courts to consider the ramifications of joint-
Nos. 19-3476, et al. 9
representation disqualification rulings in light of the high
constitutional stakes in either direction). We accordingly give
considerable deference to the district court’s decisions to the
extent that they are subject to abuse-of-discretion analysis. We
must also be mindful of the district court’s front-row seat,
which is especially relevant where a defendant deliberately
seeks to sow ambiguity for a tactical advantage. See generally
United States v. Balsiger, 910 F.3d 942, 952 (7th Cir. 2018).
A. Grundy’s Motion to Represent Himself
Richard Grundy presents a claim under Faretta v. California, 422 U.S. 806, 819 (1975). He says that the district court’s
effort to ensure that his intended waiver of his Sixth Amendment right to counsel was knowing and intelligent went too
far, effectively preventing him from exercising his Faretta
right, a request that he ultimately withdrew.
As an accused defendant, Grundy had a Sixth Amendment right to represent himself: “The Sixth Amendment does
not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his
defense.” Faretta, 422 U.S. at 819. But any waiver of counsel in
favor of self-representation must be knowing and intelligent.
A pro se defendant “should be made aware of the dangers
and disadvantages of self-representation, so that the record
will establish that he knows what he is doing and his choice
is made with eyes open.” Id. at 835.
To establish a record, we strongly encourage district
courts to conduct a formal hearing into whether the defendant is going into self-representation with “eyes open.” Faced
with a defendant invoking his right to proceed pro se, a district court should:
10 Nos. 19-3476, et al.
engage in a thorough and formal inquiry with a
defendant that probes his age, education level,
and understanding of the criminal charges and
possible sentences. The court should also inform the defendant of the difficulties of proceeding pro se.
United States v. Johnson, 980 F.3d 570, 577 (7th Cir. 2020) (quotation marks and citations omitted). We are reluctant to police
too closely the details of district courts’ Faretta hearings. The
district judge “is on the razor’s edge in assisting a defendant
to make an informed choice between representation by counsel with whom the defendant is irrationally dissatisfied and
self-representation.” United States v. Oreye, 263 F.3d 669, 672
(7th Cir. 2001).1
This case illustrates this razor’s edge. To ensure that a
waiver is “knowing and intelligent,” the court should point
out the disadvantages of self-representation. If the court does
not say much about these challenges, defendants who waive
their right to counsel may argue on appeal that the Faretta colloquy was too cursory. E.g., Johnson, 980 F.3d at 577. But if the
district court goes into detail about these challenges, a defendant who chooses in the end not to waive counsel may argue
on appeal that his Faretta rights were burdened by a colloquy
that was too persuasive. See Sandles, 23 F.3d at 1127. That’s
part of the reason there is no “talismanic procedure” for
Faretta hearings, Torres v. United States, 140 F.3d 392, 401 (2d
1 Formal hearings are not always necessary. We have affirmed findings that a defendant constructively waived the right to counsel where the
record showed clearly that the defendant knowingly and intelligently
waived the right and understood the risks of going it alone. E.g., Balsiger,
910 F.3d at 953–54.
Nos. 19-3476, et al. 11
Cir. 1998), and why we generally review district court’s Faretta
hearings deferentially. E.g., United States v. Hill, 252 F.3d 919,
928 (7th Cir. 2001) (“Often asking the Benchbook questions may
ensure that the defendant has his eyes open, but we do not
read any of this court’s decisions to hold that the litany is prescribed in every case or that advice about any particular disadvantage of self-representation is essential; such a reading
would put us at odds with the Supreme Court.”). The key is
that the accused must make the final choice, but only once he
understands his alternatives.
Nonetheless, as a matter of prudence if not constitutional
law, district judges should discourage all or nearly all defendants from exercising their rights under Faretta. E.g., Johnson,
980 F.3d at 578 (commending judge for having “strongly advised Johnson against proceeding pro se”); United States v.
Mancillas, 880 F.3d 297, 302 (7th Cir. 2018) (“courts ‘should …
advise the defendant that proceeding pro se is unwise.’”),
quoting United States v. Todd, 424 F.3d 525, 531 (7th Cir. 2005);
cf. Kubsch v. Neal, 800 F.3d 783, 812–16 (7th Cir. 2015) (affirming denial of habeas relief where petitioner argued that trial
judge did not try hard enough to discourage him from representing himself in capital sentencing phase; defendant made
competent strategic decision not to present evidence to mitigate three brutal murders, but to emphasize residual doubt
about guilt), vacated on other grounds, 838 F.3d 845 (7th Cir.
2016) (en banc). The waiver of counsel must also be “unequivocal.” That means that district courts must press difficult, hesitant, or ambivalent defendants to answer yes or no whether
they wish to waive the right to counsel. See United States v.
Campbell, 659 F.3d 607, 612 (7th Cir. 2011) (discussing importance of unequivocal demand and rationale for requirement), vacated on other grounds, 568 U.S. 802 (2012).
12 Nos. 19-3476, et al.
Turning to the facts here, seven days after the mistrial was
declared in the Indianapolis trial, Grundy moved to represent
himself. The district court held a Faretta hearing five days
later. The court began by asking Grundy about his age, education, drug-use history, and general ability to read and understand evidence. The court informed Grundy of the charges
against him and the long prison terms that could be mandatory if he were convicted. See Johnson, 980 F.3d at 577 (endorsing such advisements in Faretta hearing).
The bulk of the hearing was devoted to Grundy’s request
that his current attorney, Kenneth Riggins, be appointed
standby counsel and to the data security problems posed by
having a detained defendant with a track record of disregarding court orders seek unlimited access to confidential discovery within the jail. After discussing these issues for almost an
hour, the court noted that if Grundy were to invoke unambiguously and unconditionally his right to proceed pro se, it
would appoint attorney Riggins to have a limited role as
standby counsel. The court also said it would likely require
that Riggins retain physical possession of the most sensitive
documents, though Grundy could review those documents
with Riggins during jail visits.
The court finally asked Grundy for a yes-or-no answer.
Grundy replied, “I guess I can’t represent myself.” He explained that it was a hard choice because he did not know
how the district court would rule on future motions, including those pertaining to data security, whether the court might
allow him to re-invoke his right to counsel, and how it would
rule on a variety of late motions in limine he had contemplated filing.
Nos. 19-3476, et al. 13
On appeal, Grundy makes two distinct arguments. First,
he says that the court was too persuasive during the Faretta
hearing. Second, he says that the court should not have endorsed the government’s suggestion that his access to confidential documents should be limited.
1. Too Persuasive?
We have suggested on occasion that a too-persuasive
Faretta colloquy could burden the right. Kubsch, 800 F.3d at
812 (“If a judge believes, as the trial judge did here, that the
defendant is making a knowing and intelligent waiver, then
she would commit constitutional error by discouraging that
decision too strongly.”); Oreye, 263 F.3d at 672 (Faretta “right
is not honored if judges must depict self-representation in
such unremittingly scary terms that any reasonable person
would refuse.”), quoting Hill, 252 F.3d at 928–29; United States
v. Sandles, 23 F.3d 1121, 1127 (7th Cir. 1994) (a too-persuasive
colloquy risks “trammeling the defendant’s constitutional
right to present his own defense”). But Grundy does not cite,
and we have not found, a case in which we have actually reversed a district court for dwelling on the “perils of self-representation … in truly loving detail.” Oreye, 263 F.3d at 672.
Instead, we “have tried to keep the permissible middle
ground between these opposing errors fairly broad, allowing
trial judges reasonable leeway to adapt the inquiry to the circumstances of the case without requiring a script or checklist.” Kubsch, 800 F.3d at 813.
Grundy’s hearing was dominated by prolonged discussions regarding his request to have his current attorney appointed as standby counsel. The district court responded that
defendants who proceed pro se must represent themselves,
and they cannot be co-counsel with their standby lawyers.
14 Nos. 19-3476, et al.
Grundy explained that he did not want attorney Riggins to be
co-counsel, but “just need[ed] him to be there to, like, help []
with the litigating parts and stuff like that.” The district court
explained that that is not the job of standby counsel and, in
any event, a criminal defendant has no right to standby counsel. See United States v. Harrington, 814 F.3d 896, 901 (7th Cir.
2016) (collecting cases; “a court has no obligation” to appoint
standby counsel).
The district court underscored that if Grundy were to proceed pro se, he would be truly on his own. Grundy later explained that he viewed standby counsel as “training
wheels”—someone who could help him organize his
thoughts, sort through the evidence, and consult throughout
the trial. To that end, he also wanted to have access to Riggins’
computer at the counsel table during trial so that he and Riggins could quickly scroll through the electronic evidence.
Grundy’s concerns were greater than the computer, though,
as he wanted “to be able to, to see what is about to happen
before it happens.”
The court reiterated that it was concerned that Grundy envisioned an expansive role for Riggins. The court announced
that it would appoint Riggins as standby counsel but would
not tolerate hybrid representation (that is, the two working
together as co-counsel). The court again explained that trial
advocacy “is a highly technical involved area of education,
training, and understanding. I am not saying that to intimidate you. I am required by law to tell you that it is a hard thing
to do, but it is your absolute right to do it, and if that is what
you want to do, you have the right to do it.” The court then
read from the Federal Judicial Center’s Benchbook, which contains a suggested script for Faretta hearings, strongly urging
Nos. 19-3476, et al. 15
Grundy not to try to represent himself. Grundy asked
whether he could reverse course during trial. The court refused to deal with hypotheticals because it needed a “firm decision.” Grundy balked at the phrase, “I am giving up my
right” because he was concerned about the possibility that he
could not re-invoke his right to counsel.
The district court’s repeated questioning on Grundy’s understanding of standby counsel did not run afoul of Faretta.
We have explained that hybrid representation “is generally to
be avoided,” Carlson v. CSX Transportation, Inc., 758 F.3d 819,
826 (7th Cir. 2014), citing United States v. Chavin, 316 F.3d 666,
671–72 (7th Cir. 2002), if not outright “forbidden.” Oreye, 263
F.3d at 672. As noted, before the district court could accept
Grundy’s waiver, it had to establish a record “that he knows
what he is doing and his choice is made with eyes open.”
Faretta, 422 U.S. at 835 (quotation marks and citation omitted).
As the foregoing summary illustrates, when Grundy at first
said he wanted to waive his right to counsel, it was not clear
whether he understood the consequences or understood that
standby counsel is not co-counsel and that once he waived his
Sixth Amendment right, he had no guarantee that the court
would reappoint counsel if he later changed his mind.
We see no error in the district court’s explanation of the
limits of standby counsel, especially in the face of Grundy’s
repeated ambiguous answers as to what he wanted from his
attorney. Faretta hearings “may require a give and take between the accused and someone trying to educate him about
counsel’s benefits.” Jean-Paul v. Douma, 809 F.3d 354, 359 (7th
Cir. 2015) (quotation marks and citation omitted). Here,
Grundy repeatedly said that he wanted to have it both ways
in trial and to be allowed to change his mind. That’s a recipe
16 Nos. 19-3476, et al.
for trouble, and Judge Magnus-Stinson correctly acted to explain that hybrid representation was not possible and that she
could not guarantee Grundy that he could change his mind
In a variation on this challenge, Grundy argues that the
district court should have stopped the hearing about halfway
through because he invoked his Faretta right clearly at that
point. He contends that any further discussion burdened his
right. But his argument both misreads the record and misunderstands Faretta and the purpose of the hearing. Grundy
points to the following exchange after a fifteen-minute recess
to discuss his options with his attorney:
The Court: So you have had about 15, 20
minutes to talk to Mr. Riggins. I, before we—do
you still want to proceed with the hearing on
your motion to represent yourself?
Grundy: Yes. I wanted to ask. I kind of got to the
bottom of what I needed to know if I am going
to represent myself or not.
Grundy asserts that this was an unequivocal invocation of his
right to self-representation and that the hearing should have
stopped then.
We disagree for two reasons. First, based on the transcript,
this simply was not a clear invocation of his Faretta right. Rather, Grundy said only that he wanted to continue the conversation. See United States v. Miles, 572 F.3d 832, 836–37 (10th
Cir. 2009) (affirming district court’s interpretation of ambiguous statements as not expressing desire to proceed pro se).
Second, and more fundamental, even a clear attempt to invoke Faretta is only the beginning of the matter, not the end.
Nos. 19-3476, et al. 17
The court was required to ensure that any waiver by Grundy
of his right to counsel would have been knowing and intelligent. The court was not yet satisfied that it had established a
record that Grundy understood that he would in fact be on
his own and without Riggins’ formal assistance. See United
States v. Campbell, 659 F.3d 607, 612 (7th Cir. 2011) (where defendant clearly invokes right to proceed pro se, next step is
for district court to engage in colloquy to address that request).
Faretta is not a Miranda-like right, where custodial interrogation must cease once a suspect says he wants a lawyer. See,
e.g., United States v. Wysinger, 683 F.3d 784, 796 (7th Cir. 2012)
(applying Miranda). When a defendant clearly and unambiguously invokes his Faretta right to proceed pro se, the district
court is not required to take the statement at face value and as
final. To the contrary, the district court must refuse to accept a
supposed waiver until the record shows that the waiver is
knowing and intelligent. Because Grundy remained ambivalent and tried to invoke his Faretta right conditionally, the
court did not burden his right by asking further questions.
2. Access to Evidence
Grundy’s second argument hinges on issues related to
trial and witness security. He contends that the district court
erred by asking the government for any input during the
hearing and that the court’s suggested conditions for data security burdened his constitutional rights. He points to the district court’s suggestions that it would forbid him from taking
possession of sensitive discovery materials (such as still-confidential witness statements), though he could review any
and all documents with attorney Riggins, and that it might
not allow Grundy to use Riggins’ computer during the trial
18 Nos. 19-3476, et al.
itself. As we understand Grundy’s argument on appeal, he
says these conditions would have been unconstitutional if
they had been imposed, so invoking them as a threat to coerce
him into staying with his attorney violated Faretta.2
The district court correctly focused on the serious security
concerns posed by Grundy’s prosecution. The right to represent oneself “is not unlimited,” and “[s]ecurity considerations
… may require special adjustments.” Milton v. Morris, 767
F.2d 1443, 1446 (9th Cir. 1985), citing United States v. Chatman,
584 F.2d 1358, 1360 (4th Cir. 1978) (no constitutional violation
where defendant’s access to legal resources was restricted after being moved into “segregated confinement”); see also
United States v. Galloway, 749 F.3d 238, 242 (4th Cir. 2014) (no
constitutional violation where district court’s discovery orders inconvenienced pro se defendant because they were “justified by the circumstances,” that is, “enormous security issues”); United States v. Sarno, 73 F.3d 1470, 1491–92 (9th Cir.
1995) (“The right of access is not unlimited, but must be balanced against the legitimate security needs or resource constraints of the prison;” no constitutional violation where government allowed defendant to review discovery to determine
which documents should be copied for his pretrial
2 Circuits have reached different answers about the extent to which a
pro se defendant in custody has a constitutional right to government assistance in his defense, and about where to find such a right in the Constitution. See Kane v. Garcia Espitia, 546 U.S. 9, 10 (2005) (per curiam) (noting
split and reversing grant of habeas relief because state-court determination that pro se defendant was not entitled to law library access was not
contrary to clearly established federal law: “Faretta says nothing about any
specific legal aid that the State owes a pro se criminal defendant.”). We
need not deepen the split here because Grundy’s claim fails for reasons
explained in the text.
Nos. 19-3476, et al. 19
preparation—but gave him only 20 hours to inspect 250,000
pages of material); United States v. Bisong, 645 F.3d 384, 396
(D.C. Cir. 2011) (quoting same and expressing skepticism that
pro se defendants have any Sixth Amendment right to discovery in preparing their defense).
Recall the context of this hearing. The district court, already alert to the grave security concerns in the case, had
taken the unusual step of empaneling an anonymous jury
based on concerns about juror intimidation. The first trial
ended in a mistrial, in part because Grundy himself obtained
confidential juror questionnaires. The transcript of the Faretta
hearing also indicates that he was placed in solitary confinement as a result of the conduct that led to the mistrial.3
Given this backdrop, Grundy posed obvious and legitimate security concerns, even with counsel. If he were to represent himself, the district court had to consider further potential problems. Judge Magnus-Stinson’s discussion of potential solutions was important and responsible. A core part
of the district judge’s job is to protect jurors, witnesses, and
the integrity of judicial proceedings more broadly. Consideration of these proposals was entirely appropriate under the
circumstances. Discussion of them did not violate Grundy’s
constitutional rights.
3 Though the district court did not discuss it at the hearing, Grundy
had a hand in producing a song called “COS [Code of Silence] (Ain’t No
Tellin).” The lyrics instruct to “close your mouth for the feds” because
people who cooperate with the police are “better off dead.” The accompanying music video, which features Grundy, includes graphic fictionalized
depictions of what happens to people who “rat” on the gang. (They are
20 Nos. 19-3476, et al.
Grundy’s argument also faces a threshold problem. Since
he declined to proceed pro se, we do not know what steps the
district court would actually have taken. In reviewing the
court’s statements, we do not adopt the least charitable reading possible. The court told Grundy that if he chose to proceed
pro se, they could “figure something out,” and we do not assume that the district court would have done so unreasonably
or in bad faith.
At least some arrangements like the proposed restrictions
would have been warranted by the unusual circumstances of
Grundy’s prosecution. The government requested that Riggins, as standby counsel, retain physical possession of certain
sensitive documents, though Grundy and Riggins would be
allowed to review them together. As it mulled its options, the
court made clear that under any scenario, it would not forbid
Grundy from viewing any document, but it had legitimate security concerns about Grundy taking confidential witness
statements into the jail. Grundy’s solitary confinement may
have made this process cumbersome, but we are not convinced that approach would have been per se unconstitutional or even an abuse of discretion. See Chatman, 584 F.2d at
1360 (restricting a particularly dangerous defendant’s access
to legal materials did not violate Bounds); Galloway, 749 F.3d
at 242 (affirming limits on pretrial detainee’s access to discovery in light of security concerns).
Grundy also objects to the court’s comments on his request
to use Riggins’ computer during trial if he waived counsel.
We see no error. The court merely noted that it would “figure
something out” if Grundy chose to proceed without counsel.
In any event, Grundy’s request was ambiguous. Putting aside
the ethical and security issues posed by a court ordering a
Nos. 19-3476, et al. 21
defense attorney to give one client access to all his files, it is
not even clear that Grundy wanted a computer as such. On
follow-up questioning, he explained, “I would like to be able
to, to see what is about to happen before it happens.” As the
district judge noted, Grundy’s comment was more likely an
observation about the benefits of having the guiding hand of
experienced counsel.
To sum up on this issue, the court’s Faretta hearing was
procedurally sound, and its discussion of possible restrictions
on access to confidential documents due to security concerns
did not violate the Constitution. We affirm Grundy’s conviction.
B. Vizcarra-Millan’s Potentially Conflicted Counsel
Vizcarra-Millan’s appeal attempts to take advantage of the
inherent tension between two aspects of the accused’s Sixth
Amendment right to counsel: the right to counsel of one’s
choice and the right to counsel who is free of conflicts of interest. United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006)
(denial of counsel of choice is a structural error; reversal does
not require showing of prejudice); Wheat v. United States, 486
U.S. 153, 159-60 (1988) (right to counsel free of conflicts);
United States v. Turner, 594 F.3d 946, 955 (7th Cir. 2010) (reversing conviction following trial where district court had
disqualified defendant’s preferred counsel too readily in face
of potential conflict).
If the accused says he wants to be represented by a lawyer
who faces an actual or potential conflict of interest, the district
court can err in either direction: either deny the accused his
choice of counsel or deny him counsel free of conflicts of interest. This tension also can create opportunities for
22 Nos. 19-3476, et al.
manipulation by unscrupulous counsel or a defendant who
faces overwhelming evidence of guilt. See Wheat, 486 U.S. at
161. District courts therefore have broad discretion in how to
handle this constitutional balancing act. To complicate matters further here, Vizcarra-Millan seemed to change his mind
over the course of the case.
To begin, we review the facts of the two hearings where
Vizcarra-Millan waived his right to conflict-free counsel and
explain why we find no error at that stage. We then consider
Vizcarra-Millan’s change of position a few weeks before trial,
when he tried to revoke his waiver of his right to conflict-free
counsel. The district court rejected this change of course and
found that he was acting in bad faith, which Vizcarra-Millan
essentially admitted at sentencing. We also find no reversible
error in the court’s handling of his change of mind.
1. Vizcarra-Millan’s Waivers of the Right to Conflict-Free
a. The Problem Arises Before Judge Barker
Defendant Gilberto Vizcarra-Millan hired a conflicted attorney, John Tennyson, to represent him. Tennyson had two
other clients in the Grundy gang, and both had agreed to testify for the government. The government informed Judge
Barker that attorney Tennyson represented several defendants in two Grundy-related cases—Carroll and Carter in one
case, and Vizcarra-Millan in the other. When Judge Barker
learned of this conflict, she promptly held a hearing to determine whether Vizcarra-Millan and the other defendants
knowingly and intelligently waived the right to conflict-free
counsel and whether she should nonetheless disqualify Tennyson based on the conflict.
Nos. 19-3476, et al. 23
Judge Barker explained that a hearing was necessary because Vizcarra-Millan “intends to proceed to trial,” and Carroll and Carter had agreed to testify for the government. The
judge summarized the facts: Carroll and Carter were part of
Grundy’s drug-distribution network in Indianapolis. They
knew generally that the drugs came from Arizona, but they
did not know that Vizcarra-Millan was the source in Arizona.
Their testimony would implicate Vizcarra-Millan only indirectly. Tennyson suggested that he would not cross-examine
either Carroll or Carter except to ask whether they knew Vizcarra-Millan or knew the source of the drugs, to which they
would reply no.
Skeptical that Tennyson or the government could guarantee exactly how two cooperating witnesses would testify at
trial, Judge Barker observed that, given these conflicts, “it
seems so obvious to me … that you’re on thin ice.” Nonetheless, she conducted a full colloquy to inform each of Tennyson’s clients of his right to conflict-free counsel and the dangers of proceeding with Tennyson. All three clients orally
waived their right to conflict-free counsel. Carroll and Carter
both told law enforcement that they did not know VizcarraMillan. The government agreed that neither witness had suggested any knowledge that would implicate Vizcarra-Millan
directly. Tennyson also noted that he expected other trial evidence to establish clearly “a very strong Arizona connection,”
so that he would not contest the general geographic source of
the drugs at trial.
Judge Barker then discussed the potential conflict with
Vizcarra-Millan. She noted that it was unlikely to be “serious”
and that it was “not a substantive issue where there’s a direct
obvious conflict.” She then told Vizcarra-Millan of his right to
24 Nos. 19-3476, et al.
conflict-free counsel. He said that he waived that right and
wanted to continue with attorney Tennyson. Judge Barker
also ordered Tennyson to file written waivers, and she issued
a written order observing that disqualification was not yet
necessary given the limited nature of the conflict and Vizcarra-Millan’s knowing and intelligent waiver. The order also
observed that limiting measures short of disqualification
might effectively remedy any future conflict.
Judge Barker handled the issue exactly right. She examined the nature of the potential conflict closely and concluded
correctly that the potential conflict was not very serious or important as a practical matter. She also noted that if the potential conflict became actual, measures short of disqualifying
counsel could protect Vizcarra-Millan’s rights. Judge Barker
did not abuse her discretion by deferring to Vizcarra-Millan’s
informed choice to stick with attorney Tennyson. As noted, it
is risky to disqualify counsel over the objection of the accused,
especially where the conflict remains only potential, because
denial of the right to counsel of choice can also violate the
Constitution. Gonzalez-Lopez, 548 U.S. at 150; see also Turner,
594 F.3d at 955 (reversing conviction following trial where
district court had disqualified counsel too readily in face of
potential conflict).
b. The Second Hearing, Before Judge Magnus-Stinson
Judge Magnus-Stinson took over the conflict issue when
the two cases were consolidated. She ordered Tennyson to
submit written waivers. When he did not, Judge Magnus-Stinson held another hearing on February 19, 2019 on whether
Vizcarra-Millan knowingly and intelligently waived his right
to conflict-free counsel. At the hearing, he explained that he
“got to kind of thinking” after the first hearing. Judge
Nos. 19-3476, et al. 25
Magnus-Stinson reiterated that he had an absolute right to
conflict-free counsel, and that, based on the initial hearing before Judge Barker, it sounded as if Tennyson could not guarantee the absence of a conflict and that, at a minimum, Tennyson’s other clients would likely implicate him indirectly
through the Arizona connection.
Vizcarra-Millan’s argument on appeal hinges on what
happened next. He told the judge that he was “kind of stuck
in a hard position” because he had already paid Tennyson in
full and did not want to have to restart with a new attorney
with trial just a few months away. Vizcarra-Millan then
blamed the government for the “unfair” and “tough” position
he was in. The court responded that it was not the government’s fault that he had retained Tennyson, but nonetheless
observed that it did not sound as if he wanted to waive the
conflict. Vizcarra-Millan expressed ambivalence about
whether he wanted to waive his conflict with Tennyson, but
he then announced for the first time that he did not want to
take the case to trial.
The government provided background as to why plea negotiations had broken down. Tennyson and Vizcarra-Millan
had met with the government for a proffer session. During
that meeting, the prosecutors learned that he had never
signed the written waiver as ordered by Judge Barker. At the
hearing before Judge Magnus-Stinson, the government expressed no preference for or against Tennyson and waiver but
noted that it could not be confident it could make a valid plea
agreement where it was unclear whether Vizcarra-Millan’s
counsel actually represented him and could properly represent him:
26 Nos. 19-3476, et al.
If he wants to sign the form and waive the conflict and proceed with Mr. Tennyson, I am fine
working with Mr. Tennyson. If he wants a new
lawyer, I am fine with working with a new lawyer, but I am not going to negotiate a plea agreement or someone’s cooperation under this posture.
The judge turned the choice back to Vizcarra-Millan. After a
hearing and a half, he knew the stakes and the facts. He responded: “I don’t mind waiving my right. I don’t mind waiving it. I don’t mind waiving it.” He then complained that the
prosecutor did not help him “in any type, shape, form, or
way,” even in response to the proffer.
The judge correctly observed that this was not an unequivocal waiver, so she pressed Vizcarra-Millan to answer yes or
no whether he wanted to continue with his waiver. The judge
then went off the record for almost twenty minutes while Vizcarra-Millan discussed the issue with Tennyson. Following
that conversation, he clearly and unequivocally waived his
right to conflict-free counsel. He later filed a written waiver of
his right to conflict-free counsel.
On appeal, Vizcarra-Millan argues that his waiver was invalid because it was not knowing, intelligent, voluntary, and
unequivocal. See United States v. Hill, 252 F.3d 919, 923–24 (7th
Cir. 2001). We review that question de novo, though we defer
to the credibility determinations of the district court. United
States v. Balsiger, 910 F.3d 942, 952 (7th Cir. 2018). Based on
this record, there is no question that Vizcarra-Millan’s waiver
met these criteria. We defer to both Judge Barker’s and Judge
Magnus-Stinson’s determinations that he understood the
hearings. His comments in both hearings show that he
Nos. 19-3476, et al. 27
understood what was happening. There is no hint that the
government coerced the waiver. To the contrary, the government was agnostic about his decision. And finally, though
Vizcarra-Millan was ambivalent about joint representation at
the beginning of the second hearing, he cleared up any ambiguity by the end of the hearing. To the extent he argues now
that Tennyson misled him during the off-the-record break,
two different federal judges concluded that Vizcarra-Millan
understood what was happening and what the stakes were,
so no further colloquy would have been necessary. See Turner,
594 F.3d at 952 n.1 (emphasizing minimal procedural requirements for hearings on waiver of conflict-free counsel).
Vizcarra-Millan also argues that the red flags in Tennyson’s representation should have caused the court to disqualify Tennyson despite his own waiver and his invocation of his
right to counsel of choice. Such a step would have invited appeal based on denial of his right to counsel of choice, as in
Turner, 594 F.3d at 948 (reversing where district court disqualified defendant’s counsel of choice based on potential conflict
of interest). The fact that Tennyson was “up to [his] elbows”
in conflicts, as Judge Barker put it, might have permitted the
court to override the defendant’s choice, but he has not shown
that judicial override of his choice was required.
The question on appeal is whether Judge Magnus-Stinson’s decision to accept the second waiver was within the
wide band of discretion that district court judges have when
facing such a dilemma. It was. While disqualification of the
defendant’s counsel of choice over his objection might have
been permissible here under Wheat, it would have produced
a sure-fire issue for an appeal, especially in light of both Tennyson’s and Vizcarra-Millan’s statements minimizing the
28 Nos. 19-3476, et al.
seriousness of what seemed like only a minor potential conflict that could, if necessary, be managed by steps short of disqualification. See United States v. Gearhart, 576 F.3d 459, 465
(7th Cir. 2009) (collecting examples of creative evidentiary solutions to avoid conflicts); United States v. Turner, 651 F.3d 743,
750 (7th Cir. 2011) (citing same).4
2. Vizcarra-Millan Changes His Mind
After Vizcarra-Millan submitted his written waiver, the
parties went back to the negotiating table but were unable to
reach an agreement. On May 2, 2019, Tennyson reported at a
status conference that Vizcarra-Millan would proceed to trial.
Three weeks later, and just five weeks before trial, Tennyson filed a motion seeking to withdraw Vizcarra-Millan’s
waiver of the right to conflict-free counsel. The motion was
terse. It recited the procedural history and said: “The Defendant no longer wishes to waive his right to conflict-free representation because plea negotiations have broken down.” It
added that Vizcarra-Millan “felt pressured into executing the
waiver because the Government would not negotiate with
him while the issue of whether he would sign a joint representation waiver was pending.”
4 Much of Vizcarra-Millan’s argument against the validity of his second waiver seems to preview a future argument that he did not receive
effective assistance of counsel during plea negotiations. His primary complaints about Tennyson do not concern the joint representation issue with
Carroll and Carter. Rather, he questions Tennyson’s overall competence
as an attorney and the adequacy of representation he provided in this case.
But the overall record of Tennyson’s representation is not before us, and
we express no opinion on the subject. See United States v. Flores, 739 F.3d
337, 340–41 (7th Cir. 2014) (explaining why we discourage defendants
from bringing ineffective assistance claims on direct appeal).
Nos. 19-3476, et al. 29
After briefing but without a hearing, the district court denied the motion. The court analogized Vizcarra-Millan’s oral
and written waivers to guilty plea colloquies and suggested
that he not be able to recant his sworn testimony without some
reason. It stressed that Vizcarra-Millan’s motion was flatly inconsistent with the oral and written representations both he
and his lawyer had made throughout the case. The court concluded that Vizcarra-Millan sought to use his counsel’s conflict of interest as a “bargaining chip in plea negotiations.” The
court also found his “eleventh-hour” motion to be “suspect”
because Vizcarra-Millan had rejected the government’s plea
offer over three weeks before the motion to withdraw the
waiver was filed, and at that hearing, the court underscored
the logistical challenges that the trial would pose. The court,
in other words, viewed the motion as a last-minute gambit to
postpone the joint trial.5
5 In the end, though, the district court disclaimed reliance on any logistical or calendar problems that could be posed by granting a continuance to allow replacement counsel to get up to speed, though it found such
concerns to be “notable.” See Gonzalez-Lopez, 548 U.S. at 152 (noting district court’s wide latitude in considering calendar concerns). Vizcarra-Millan’s attempt to compare the timing of his motion to instances where we
have held that a court abused its discretion in denying such a motion even
closer to trial is thus misplaced. The district court did not deny his motion
to withdraw on that ground. We note, however, that these are highly factand context-specific issues, and there is no hard timing cutoff. See United
States v. Sellers, 645 F.3d 830, 836 (7th Cir. 2011) (“[W]e look at the whole
of the circumstances surrounding the last minute filing.”). If the district
court had granted Vizcarra-Millan’s motion, the other trial defendants
would have had to sit in jail, their day in court postponed for months until
replacement counsel could make it through the mountains of discovery,
to say nothing of witnesses’ fading memories or weakening resolve to
30 Nos. 19-3476, et al.
The district court focused most of its analysis on the fact
that both Tennyson and Vizcarra-Millan had long been aware
of this potential conflict of interest. The May 27 motion to
withdraw his waiver argued that the likelihood that VizcarraMillan would go to trial would create a new conflict, but that
possibility had always been on the table. Judge Barker’s hearing back in October 2018 was premised on Vizcarra-Millan going to trial, and the parties discussed in detail what such a
trial might look like. Tennyson offered suggestions as to how
to avoid or manage the conflict if it arose. Judge Barker noted
other options in her order approving the waiver. VizcarraMillan was present for all of that. Two federal judges observed
him through two hearings discussing the conflict of interest
and potential for trial problems, and both thought that he understood the issue and voluntarily chose to waive the potential conflict.
Vizcarra-Millan has two principal arguments for reversing
based on the denial of these motions. First, he argues that the
court made a procedural error by ruling on his first motion
without holding a hearing. At the very least, he says, the
court’s failure to hold a hearing should call for de novo review
of the denial. Second, he says that the court erred substantively because, if a defendant objects to conflicted counsel before trial, it is a per se constitutional violation to make him
proceed to trial. In the alternative, he argues that the district
court held him to too high a standard for withdrawing his
testify against the conspirators. It would not have been an abuse of discretion to deny Vizcarra-Millan’s motion on these grounds, too.
Nos. 19-3476, et al. 31
a. Need for Another Hearing?
As a general rule, an opportunity to be heard face-to-face
can improve the accuracy of decision-making and ensures a
sense of fairness and legitimacy in the process. See generally
Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123,
161–74 (1951) (Frankfurter, J., concurring). Perhaps another
hearing might have sharpened the district court’s decisionmaking and aided our review, but we are not convinced that
yet another hearing was essential here.
In challenging the denial without a hearing, Vizcarra-Millan relies on our cases involving motions to replace appointed
counsel due to a lack of communication between client and
counsel preventing an adequate defense. E.g., United States v.
Jones, 844 F.3d 636, 642 (7th Cir. 2016). In such cases, we review for an abuse of discretion when a defendant has “had an
opportunity to explain his reasons for requesting substitute
counsel.” Id. We weigh “the timeliness of the defendant’s motion, the adequacy of the district court’s inquiry into the motion, and whether the conflict resulted in a total lack of communication preventing an adequate defense.” Id.
Another hearing was not essential in this case. The importance of a hearing on issues of replacing counsel is based
on two assumptions that do not apply here. First, a motion for
substitution may be the first time that the district court becomes aware of the conflict or tension between attorney and
client. Zillges, 978 F.2d at 371–72; see also United States v. Ryals,
512 F.3d 416, 418 (7th Cir. 2008) (reversing denial of motion
for substitute counsel for sentencing). Second, where there
has been a “total breakdown in communication,” an in-person hearing where a defendant can explain himself or herself
serves an important purpose. With an asserted breakdown in
32 Nos. 19-3476, et al.
communication, the court should not necessarily assume that
counsel has described the problem accurately. See Ryals, 512
F.3d at 419–20 (defendant cannot be blamed because counsel
described tension inadequately); United States v. Morrison, 946
F.2d 484, 498–99 (7th Cir. 1991).
Neither of those concerns was present here. First, the district court had already held two hearings on the same issue.
Everyone knew what the issues and concerns were. To be
sure, a hearing would have allowed the district court to probe
why Vizcarra-Millan’s thinking had changed, but it was not
necessary to understand the fundamental issues in Tennyson’s motion. See United States v. Bjorkman, 270 F.3d 482, 501
(7th Cir. 2001) (“even without [a] hearing the court may well
have been sufficiently apprised of the nature of Bjorkman’s
complaints to rule on his request” where defendant’s letter
provided some detail); see also United States v. Miller, 405 F.3d
551, 557 (7th Cir. 2005) (applying abuse-of-discretion review
where district court held hearing “afterit denied the request”).
Thus, we review for abuse of discretion.
Second, the conflict at issue did not implicate Tennyson’s
ability to convey or fulfill Vizcarra-Millan’s wishes. The conflict was the same one that had been discussed all along. If
Vizcarra-Millan were to go to trial, Carroll might testify that
the drugs came from Arizona, and Tennyson would have to
limit his impeachment of Carroll, also his own client, on that
fact. Nothing about that conflict suggested that Tennyson was
unable to represent Vizcarra-Millan, let alone that he could
not present an adequate defense or describe the issue adequately.
Nos. 19-3476, et al. 33
b. Rejecting the Change of Mind
Turning to Vizcarra-Millan’s substantive challenges to the
denials, the general rule is that if there is no waiver, “whenever a trial court improperly requires joint representation
over timely objection reversal is automatic.” Holloway v. Arkansas, 435 U.S. 475, 488 (1978). That general rule does not apply here because Vizcarra-Millan did waive his right, knowingly and voluntarily, and the case had proceeded for months
in reliance upon that waiver. District courts are entitled to
treat such waivers as binding. United States v. Roth, 860 F.2d
1382, 1387 (7th Cir. 1988) (“A judge is entitled to hold a defendant to statements made in open court and need not give
him a hearing so that he may more readily contradict himself.”). At least for the reasons we have described with the constitutional double-bind, we review only for an abuse of discretion a district court’s refusal to allow the withdrawal of a
valid waiver.
Vizcarra-Millan’s evident bad faith supported denial of
his attempt to withdraw his waiver. District courts have discretion to deny bad-faith attempts to manipulate judicial proceedings or to undermine the integrity of the judicial process.
See, e.g., United States v. Fazzini, 871 F.2d 635, 643 (7th Cir.
1989) (district court did not err in refusing to inquire into welldocumented about-face regarding pro se representation);
United States v. Thibodeaux, 758 F.2d 199, 201 (7th Cir. 1985)
(defendant “may not manipulate his right to counsel to undermine the orderly procedure of the courts or subvert the
administration of justice” by filing dilatory and contradictory
motions regarding appointed counsel); cf. United States v.
Gonzalez-Lopez, 548 U.S. 140, 151–52 (2006) (listing instances
34 Nos. 19-3476, et al.
where courts weigh right to counsel against case and court
Judge Magnus-Stinson soundly rejected Vizcarra-Millan’s
attempt to blame the prosecutor for forcing him into this supposed corner. At the February 2019 hearing, the government
had said it had no preference for or against Tennyson. The
problem in the plea negotiations was that Vizcarra-Millan’s
strategic ambiguity in orally waiving his right without signing a written waiver had made it impossible to know whether
Tennyson was truly authorized to negotiate on his behalf. Until that question was resolved definitively, plea negotiations
would have been a waste of time.
Vizcarra-Millan argues more generally that a district court
is not allowed to deny a motion to withdraw a waiver of a
constitutional right out of spite, and that applying any heightened standard is suspect. He says that the district court
should not have required him to show changed circumstances
justifying his about-face. He also analogizes his case to others
in which we have criticized district courts for failing to accommodate other motions to substitute counsel even closer to
trial. See, e.g., Sellers, 645 F.3d at 838.
Vizcarra-Millan is correct that timing is often central when
a district court denies a motion to change counsel. Where he
veers off course, however, is misunderstanding the multiple
ways in which timing may be relevant. It’s not only a matter
of logistics, even if logistics alone would have justified denial
of his about-face here. As the Fifth Circuit has noted, a district
court can deny such a motion if the defendant “was attempting to abuse his rights to achieve some mischief” or if “granting his request would have interfered in any way with … calendaring.” United States v. Taylor, 933 F.2d 307, 311 (5th Cir.
Nos. 19-3476, et al. 35
1991); see also United States v. Leveto, 540 F.3d 200, 207 (3d Cir.
2008) (“Certainly, evidence of a defendant’s dilatory motive
is properly considered as a basis for denial. Moreover, particularly as the trial date draws nearer, the district court can and
should consider the practical concerns of managing its
docket.”). In short, a defendant “may not manipulate his right
to counsel to undermine the orderly procedure of the courts
or subvert the administration of justice.” United States v. Balsiger, 910 F.3d 942, 954 (7th Cir. 2018), quoting Thibodeaux, 758
F.2d at 201.
The court did not clearly err in finding that Vizcarra-Millan acted in bad faith. Judge Magnus-Stinson observed Vizcarra-Millan in his second waiver hearing and later proceedings, and she concluded that the new attempt to revisit the
conflict issue was just a ploy. Everyone, including VizcarraMillan, knew there were easy ways to work around this potential conflict. Based on the well-documented history of Vizcarra-Millan’s waiver, including his initial attempt to hold out
on signing the waiver in an attempt to sow strategic ambiguity, we see no error in Judge Magnus-Stinson’s findings or her
denial of Vizcarra-Millan’s pretextual motion.
Even if there were doubt about Vizcarra-Millan’s bad faith
before trial and his guilty plea, the doubt would have been
erased at sentencing. After the court denied Vizcarra-Millan’s
waiver, he pled guilty without a plea agreement. The court’s
plea colloquy was the “most thorough, most pointed” the attorneys had ever seen. Nonetheless, on the eve of sentencing,
Vizcarra-Millan, through Tennyson, moved to withdraw his
guilty plea. The judge gave him an opportunity to explain his
actions throughout the litigation. He admitted that he had created ambiguity in whether he had waived his right to conflict-
36 Nos. 19-3476, et al.
free counsel so as to keep his options open. In other words, he
admitted that he had effectively misled the court in his sworn
Rule 44 colloquy. He also claimed that he had not understood
the plea colloquy and therefore should be released from his
Judge Magnus-Stinson was not impressed:
So I know you are trying to figure out an angle
to get yourself off the hook that you are on, but
you are on the hook is what I am telling you today. And so the Court will deny any request to
withdraw the plea of guilty in this case. Because
just for the record, I think you will say whatever
you can to try to get out of it….
Vizcarra-Millan says that we should not credit his statements at sentencing because they were tainted by the court’s
earlier denial of his motion to withdraw his waiver. We do not
follow his logic. As noted, we review the district court’s badfaith finding for clear error. The court found that he was motivated by the desire to use the strategic revocation of his
waiver as a bargaining chip in plea negotiations. He admitted
at sentencing that he had done exactly that.
The district court therefore did not abuse its discretion in
denying Vizcarra-Millan’s motion as made in bad faith. District courts are entitled to rely on “the representations of the
defendant, his lawyer, and the prosecutor…. Solemn declarations in open court carry a strong presumption of verity.”
Blackledge v. Allison, 431 U.S. 63, 73–74 (1977); United States v.
Roth, 860 F.2d 1382, 1387–89 (7th Cir. 1988) (holding defendant to earlier waiver of right to conflict-free counsel). Tennyson and Vizcarra-Millan’s about-faces gave the court a choice.
Nos. 19-3476, et al. 37
It could either reward their gamesmanship by allowing their
“transparent ploy for delay,” Morris v. Slappy, 461 U.S. 1, 13
(1983), or it could conclude that, in the interest of fair and orderly administration of justice, they would have to stand by
their repeated solemn declarations.
Contrary to Vizcarra-Millan’s arguments, the district court
did not ignore the Sixth Amendment stakes. Tennyson’s conflict was only potential and narrow. Carroll’s anticipated testimony that the drugs came from Arizona was simply not
much of an issue for the government or Vizcarra-Millan. Tennyson and Vizcarra-Millan conceded as much. Carroll did not
testify about it at trial. The record was clear that any conflict
at trial could have been mitigated in any number of ways so
that it never would have required disqualification. Tennyson
and Vizcarra-Millan discussed those options in open court.
Finally, Vizcarra-Millan argues that he should not be
blamed for having hired an unethical and unscrupulous lawyer. He was taken advantage of, he says, and did not waive
his rights or seek to revoke that waiver in bad faith. He would
rather we focus on Tennyson’s misconduct in soliciting joint
representation without obtaining written waivers as required
by the Indiana Rules of Professional Conduct. He did so while
reaching out directly to represented clients, again in violation
of the Indiana Rules of Professional Conduct. He was held in
contempt of court for failing to abide by court orders. His license to practice law was briefly suspended in Tennessee.
This is a troubling story, but it should not distract us from
Vizcarra-Millan’s conduct. The district court inferred (and he
admitted) that from the very early stages of this case, he deliberately tried to sow ambiguity about his waiver. He then
continued to use Tennyson’s potential conflict as a wedge to
38 Nos. 19-3476, et al.
secure a better plea deal. Whether Tennyson committed further ethical misconduct, whether his performance fell below
the constitutional minimum, and whether Vizcarra-Millan
might have been prejudiced by any such failure are questions
that are not properly before us. We affirm Vizcarra-Millan’s
III. Fourth Amendment Issues
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon
probable cause, supported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
Defendants Atwater, Beasley, and Moseby all filed late motions to suppress evidence gathered against them, each claiming that a different facet of the Fourth Amendment was violated. Atwater’s house was searched pursuant to a warrant.
He argues that the warrant was not issued “upon probable
cause.” Beasley argues that the pretextual traffic stop leading
to discovery of methamphetamine on his person was an “unreasonable seizure” because the officers did not actually observe a traffic violation. Moseby’s cell phones were seized and
searched pursuant to a warrant authorizing federal agents to
seize and search all cell phones found in Grundy’s clubhouse.
Moseby argues that, given the unique privacy interests in cell
phones, the warrant was too broad to justify seizure and
search of his cell phones.
Nos. 19-3476, et al. 39
A. Timeliness of the Motions and Beasley’s Motion to Suppress
The government asks us to affirm the district court’s denials of all three motions as untimely. Per the district court’s
scheduling order, motions to suppress were due in February
2019. All three defendants’ motions were filed months later,
two in the days preceding trial and the third actually during
“If a party does not meet the deadline for making a [motion to suppress], the motion is untimely. But a court may consider the defense, objection, or request if the party shows
good cause.” Fed. R. Crim. P. 12(c)(3). “If the defendant also
fails to file a motion for relief showing good cause before the
district court, then we apply a hyper-deferential standard of
review in which we examine whether, if a motion for relief
had been made and denied, the district court would have
abused its discretion in concluding that the defense lacked
good cause.” United States v. Adame, 827 F.3d 637, 647 (7th Cir.
2016) (quotation marks and citation omitted).
At least two, if not all three, motions to suppress could
have been denied on procedural grounds as untimely under
Rule 12. Neither Atwater nor Beasley tried to show good cause
before the district court. Moseby’s late motion tried to establish good cause, and the district court did not rule on that
question. Although Rule 12 is mandatory, it is not jurisdictional, United States v. Nixon, 901 F.3d 918, 921 (7th Cir. 2018),
and we may affirm the district court on any ground supported
by the record. United States v. Harden, 893 F.3d 434, 451 (7th
Cir. 2018). Because the district court addressed the merits of
40 Nos. 19-3476, et al.
each defendant’s suppression motion, we do the same for Atwater’s and Moseby’s respective motions.6
Beasley’s motion, however, presented a question of fact,
and the district court did not hold a hearing with in-person
testimony. Recall that Susan Koch and Beasley drove in her
car to buy some methamphetamine. Local police knew about
the deal and stopped their car soon after the deal had been
completed. Beasley’s motion to suppress asserted that the officers did not have reasonable suspicion for the seizure because they did not actually observe a traffic violation. See, e.g.,
United States v. Simon, 937 F.3d 820, 829 (7th Cir. 2019). He
then argued that the 120 grams of highly pure methamphetamine that were found on him and served as the basis of his
conviction for Count 16 should have been suppressed.
Beasley’s motion thus attacked the credibility of the officers who made the stop. One group of officers said Koch
swerved out of her lane over a double yellow line. Another
group of officers said Koch drove 50 miles per hour in a 35
mile-per-hour zone. Beasley claimed that a hearing would
show that the stop violated the Fourth Amendment. The government said that Koch was simply driving erratically and
two sets of officers saw her commit different violations in different places.
So did the officers actually see one or both violations?
Were they honestly mistaken? Was one group of officers lying? Were both? Neither? These questions are fact-intensive
and would have required weighing witness credibility. E.g.,
6 Ruling on the substance of such motions can avoid later claims for
ineffective assistance of counsel premised on motions that would not have
Nos. 19-3476, et al. 41
United States v. Rodriguez-Escalera, 884 F.3d 661, 672 (7th Cir.
2018) (affirming grant of motion to suppress based on credibility findings). The district court denied Beasley’s motion on
the twin grounds that it was untimely and that the motion did
not cleanly tee up a material factual dispute that would justify
a hearing at that late juncture.
Even on appeal, Beasley does not identify good cause for
his late motion, and no justification is apparent from the record. We accordingly affirm the district court’s denial of his
motion to suppress as untimely. See Adame, 827 F.3d at 647.
We do not reach the merits or the need for a hearing.
B. Atwater’s House
Atwater argues that the evidence of drug possession and
distribution uncovered during a search of his home should be
suppressed because the warrant justifying the search was not
supported by probable cause. The warrant application provided facts showing that Atwater was a drug dealer, that a
specific residence was likely his house, and that based on
those facts, in the experience of the affiant, it was likely that
he had drugs or evidence of dealing in the home. Atwater
claims that the evidence showing that the house was his was
too sketchy and that any inference that he kept drugs or other
evidence of dealing there was too speculative.
An affidavit submitted in support of a warrant application
“need only contain facts that, given the nature of the evidence
sought and the crime alleged, allow for a reasonable inference
that there is a fair probability that evidence will be found in a
particular place.” United States v. Aljabari, 626 F.3d 940, 944
(7th Cir. 2010). Probable cause is a common-sense standard,
42 Nos. 19-3476, et al.
and we give deference to an issuing judge’s assessment. E.g.,
United States v. Bacon, 991 F.3d 835, 840 (7th Cir. 2021).
We have recognized that “[i]n the case of drug dealers, evidence is likely to be found where the dealers live.” United
States v. Lamon, 930 F.2d 1183, 1188 (7th Cir. 1991), quoted in
United States v. Zamudio, 909 F.3d 172, 176 (7th Cir. 2018).
Thus, where an affidavit offers reasonable grounds to believe
the target is a drug dealer and that the property to be searched
is his or her residence, we defer to an issuing judge’s determination that the warrant application established probable
cause to search the residence. Zamudio, 909 F.3d at 176–77.
Here, the warrant affidavit said that Atwater bought
wholesale quantities of methamphetamine several times in
quick succession. He bought, for example, two ounces on July
27, 2017; one ounce on August 6, 2017; and twelve ounces on
August 10, 2017. These were quantities of methamphetamine
consistent with retail drug distribution. Atwater alleges that
the information was stale because these purchases were three
months old. It is true that a warrant based on the prior possession of consumable or fungible goods may be stale if too
much time has passed before the search is executed. But here,
the repeated and large purchases suggested ongoing activity,
i.e., retail drug distribution. Given the affiant’s experience
that retail drug dealers keep drugs in their home, that was
enough to support a finding of probable cause. Id. at 176–77;
see also United States v. Pless, 982 F.2d 1118, 1126 (7th Cir.
1992) (three-month-old information about methamphetamine
laboratory was not stale, and even if it had been, officers relied
on warrant in good faith).
That brings us to Atwater’s second issue: the evidence that
he lived at the place to be searched. The warrant application
Nos. 19-3476, et al. 43
explained that he subscribed for utility services at the address,
that cell-site location information placed him (or at least his
cell phone) there a majority of the time, and that surveillance
placed him there twice in the week preceding the warrant application. That was enough to support the magistrate judge’s
common-sense determination that there was a reasonable
probability that Atwater lived there and that the police would
find drugs or other evidence of drug-dealing there.
C. Moseby’s Cell Phones
Moseby’s cell phones were seized during a search of one
of Grundy’s properties, the “clubhouse” for his gang. Moseby
claims that the search warrant was overbroad in allowing the
police to seize every cell phone found inside a residence based
on the conclusory assertion that the house was a “clubhouse.”
He also claims that once the officers ascertained that the
phones were not Grundy’s, they should have stopped searching them without obtaining another warrant specific to those
phones. We conclude that even if we assume that the warrant
was overbroad, however, the officers were entitled to rely on
it in good faith because it was not facially defective.
The Fourth Amendment requires that warrants be supported by probable cause and that they describe with particularity the places and objects to be searched and seized. These
requirements are related. The particularity requirement “ensures that the scope of a search will be confined to evidence
relating to a specific crime that is supported by probable
cause.” United States v. Vitek Supply Corp., 144 F.3d 476, 481
(7th Cir. 1998). Warrants that are overbroad, that is, that allow
officers to search for items that are unlikely to yield evidence
of the crime, violate the Fourth Amendment. Balancing these
concerns is highly fact- and context-specific. A warrant that
44 Nos. 19-3476, et al.
may be overbroad in one context may be sufficiently specific
where the officers have less reliable information about where,
exactly, the evidence is likely to be found. Id.; see generally
United States v. Bishop, 910 F.3d 335, 336 (7th Cir. 2018) (“Criminals don’t advertise where they keep evidence.”).
“The fruits of a search based on an invalid warrant may be
admitted at trial if the executing officer relied on the invalid
warrant in good faith.” United States v. Orozco, 576 F.3d 745,
750 (7th Cir. 2009), citing United States v. Leon, 468 U.S. 897,
922 (1984). Where an officer goes through the effort to secure
a warrant, we presume the officer acted in good faith. Id.,
quoting United States v. Mykytiuk, 402 F.3d 773, 777 (7th Cir.
2005). The good-faith exception to the suppression rule does
not apply, however, when, among other situations, “the affidavit is ‘bare bones’ or ‘so lacking in indicia of probable cause’
that reliance is unreasonable[] [or] when the warrant is facially deficient in that it fails to specify the place to search or
the items to seize.” United States v. Glover, 755 F.3d 811, 819
(7th Cir. 2014), quoting Leon, 468 U.S. at 923.
To succeed on his suppression motion, Moseby must show
not only that the warrant that authorized the search of his
phones was overbroad but that it was objectively unreasonable for an officer to think that the warrant was legitimate even
though a judge had issued it. The search warrant in question
authorized a search of one of Grundy’s residences. The warrant allowed the executing officers to “search and seize” “Cellular telephones and all electronic data stored within the
memory of the cellular telephones.” Neither the warrant nor
the warrant application discussed Mr. Moseby or his phones.
When the officers executed the warrant on November 17,
2017, Grundy and Moseby were present, along with three
Nos. 19-3476, et al. 45
other co-conspirators. The officers found two cell phones in a
bedroom, one on a bed, and the other on the floor next to it.
They also found a bag containing a handgun and a receipt
with Moseby’s name for one of the cell phones. (The phones
were registered to the same number and had identical content.) The phones both belonged to Moseby and contained incriminating data that was the basis of much of the government’s case against him.
Moseby makes several arguments. He argues that a warrant allowing police officers to enter a suspect’s home and
seize every phone is necessarily overbroad. He says that the
warrant was obviously overbroad here because it allowed officers to continue searching the phones even after they ascertained that they were not the wiretap’s “target phones” and
did not belong to Grundy. Moseby also asks us to apply a
heightened standard of review because the warrant here concerned cell-phone searches, which he says are especially constitutionally sensitive.
The government counters that the warrant was not overbroad because the target location was Grundy’s “clubhouse,”
so that any phones found there were reasonably likely to have
a nexus to the gang’s criminal activity. Also, the government
points out, we must face the realities of drug-dealing and police searches. Criminals do not neatly label which cell phone
belongs to whom, and officers would be foolish to trust selfserving denials. Even if the warrant was defective, the government says, officers relied on it in good faith.
This warrant application was full of references to cell
phones. It opened with a list of the fourteen “target phones”
for the wiretaps. It then summarized selected calls for over
seventy pages, not to mention other references to cell phones
46 Nos. 19-3476, et al.
in other parts of the warrant. The application established that
cell phones provided crucial infrastructure for Grundy’s drug
network and that they likely captured additional criminal activities beyond those recorded by the wiretaps.
The list of target phones also underscored that Grundy
and his gang seemed to treat cell phones as fungible and tried
to conceal the true owner of each phone. The list of target
phones showed, for example, that at least some conspirators
had multiple phones, each with a different number. None of
the listed phones was used by the person who had registered
it. For many phones, subscriber information was unavailable.
At least two of those that did list subscriber information used
obviously fake names or contact information, such as Tyler
Jones of “1234 abcfe ave” (used by Nathaniel Dixson) and
“Hector FFFFFFFFF” (used by David Carroll).
The warrant application was less specific about Grundy’s
residences, though. The affidavit explained that Grundy
likely knew he was under surveillance and/or a target of rival
gangs. Wary of surveillance, he covered his tracks and made
it difficult to discern where he would be or stay at any given
time. Nonetheless, the warrant application identified the residence to be searched as the “clubhouse” for Grundy’s gang.
The sub-bullet points under this assertion, however, had little
to nothing to do with why the residence was a clubhouse.
They mostly discussed Grundy’s family.
Moseby’s overbreadth argument is that the warrant here
was not “as specific as circumstances allowed.” Bishop, 910
F.3d at 338. He says that the warrant should have either limited the phones to be seized to those that were used in drug
trafficking or required officers to obtain a second warrant to
search any phone that had been seized. These options are
Nos. 19-3476, et al. 47
available and are often used by issuing judges. See, e.g.,
United States v. Eggerson, 999 F.3d 1121, 1127 (8th Cir. 2021)
(“The second warrant, which police got after they seized Eggerson’s phone and which was limited to its contents, is even
less suspect.”); United States v. Wagner, 951 F.3d 1232, 1247–48
(10th Cir. 2020) (search warrant implicitly required nexus between computers to be seized and child pornography, and
failure to specify ownership was immaterial because it was
unknown which computers were used for child pornography); cf. United States v. Griffith, 867 F.3d 1265, 1277 (D.C. Cir.
2017) (where police officers intend to rely on a second warrant
to search phones, the initial warrant must expressly limit
agents’ authority to examine any electronic devices seized);
Vitek Supply, 144 F.3d at 481 (distinguishing between legal and
illegal items to be searched, but noting that in practice, such
limits may have little practical effect if officers cannot distinguish between the two). Moseby is correct that the warrant’s
failure otherwise to limit the types of phones to be seized
opens the door for further mischief based on the conclusory
assertion that the place to be searched was Grundy’s “clubhouse.”
Moseby argues that these mutually reinforcing gaps are
especially troubling because they allowed the officers to
search the cell phone of every person who happened to be in
the same house as Grundy. In Riley v. California, the Supreme
Court held that police must obtain a warrant before searching
a cell phone found on an arrestee during a search pursuant to
arrest. 573 U.S. at 386. The Court noted people’s heightened
privacy interests in cell phones relative to other objects that
may be searched pursuant to arrest: “Cell phones differ in
both a quantitative and a qualitative sense from other objects
that might be kept on an arrestee’s person.” Id. at 393. As
48 Nos. 19-3476, et al.
compared to rummaging indiscriminately through a person’s
home, the archetype of a search that violates the Fourth
Amendment, “a cell phone search would typically expose to
the government far more than the most exhaustive search of a
house.” Id. at 396.
The Riley opinion included sweeping language about the
privacy implications of warrantless searches of cell phones,
but the Fourth Amendment holding was relatively limited: “a
warrant is generally required before such a search, even when
a cell phone is seized incident to arrest.” Id. at 401. Or, more
pithily, “get a warrant.” Id. at 403. Here, of course, the officers
did so, and it expressly authorized searches of any cell phones
found at the location.
In support of his overbreadth argument, Moseby relies on
United States v. Griffith, which held that the Leon good-faith
exception did not apply when officers seized a cell phone pursuant to a warrant based on an obviously overbroad and under-specific affidavit. 867 F.3d 1278–79. In that case, the defendant was suspected of murder. Following the murder, he
was incarcerated for another crime for a year. When he was
released, the officers sought a warrant to search his house and
seize, among other things, all electronics found there, including his cell phone. The affidavit did not contain any information establishing a nexus between the murder and any
electronics, let alone that Griffith even had a cell phone. The
connection between the hypothetical phone and the crime
(the year-old murder) was merely that most people own cell
phones, most cell phones capture what their users do, Griffith
is a person, we think he’s a criminal, so we think there exists
a cell phone that captured evidence of a crime. The allegation
that supposedly provided probable cause to search Griffith’s
Nos. 19-3476, et al. 49
home for evidence in the first place was that he had a hypothetical cell phone that contained hypothetical evidence.
The appellate court reversed the district court’s denial of
Griffith’s suppression motion: “officers seeking authority to
search a person’s home must do more than set out their basis
for suspecting him of a crime.” Id. at 1279. The overbreadth of
the warrant was especially striking in that case because it allowed the seizure and search of all electronic devices, and it
was unlikely that Griffith’s current phone would have contained incriminating evidence for a crime that had occurred
over a year earlier. Id. at 1278–79. In other words, a reasonable
officer should have known that the cell phone request was
fishy, that the authorization to seize and search every electronic device in Griffith’s house (to which he had just returned
after prison) was overbroad, and that the justification for the
search was circular.
The warrant application here was substantially stronger.
See Eggerson, 999 F.3d at 1126 & n.3 (distinguishing Griffith).
The central role of cell phones to Grundy’s gang is apparent
throughout the 170-page search warrant application. As
noted, the application showed that members of Grundy’s
crew used multiple phones that were unregistered or registered to others. Unlike Griffith, there was an obvious likely
connection between the crime and the phones, and there was
good reason to think that Grundy and his crew had multiple
phones that would be difficult to identify as being used by
particular individuals. As the Supreme Court instructed in Riley, law enforcement here obtained a warrant—and one that
specifically authorized seizure and search of cell phones.
Based on these facts, a warrant authorizing the seizure and
search of any phone found in what was thought to be
50 Nos. 19-3476, et al.
Grundy’s clubhouse, regardless of its registration, was not so
overbroad as to defeat the good-faith exception. It would have
been possible to frame the warrant request more narrowly,
but that is not the good-faith standard. Grundy and his crew’s
extensive use of cell phones, combined with their attempts to
cover their tracks, established enough of a nexus that a warrant authorizing seizure and search of all phones in their clubhouse, regardless of ownership, was not so obviously invalid
that an agent or officer should have refused to execute it.
This logic emphasizes the assertion that the property was
the dealers’ clubhouse as opposed to an ordinary residence.
We agree that, as in Griffith, a search warrant may be overbroad by authorizing without probable cause the seizure of
all electronic devices in a location. Griffith, 867 F.3d at 1271-76.
Moseby argues that the “clubhouse” assertion was too conclusory to support such a sweeping search and that the police
officers should have known that this was too “bare bones” to
support a warrant. Moseby is correct that there are no other
specific factual allegations (such as observations of other gang
members entering or leaving) indicating that the residence
was in fact a clubhouse.
In support he relies on United States v. Koerth, 312 F.3d 862,
867, 870 (7th Cir. 2002), which criticized a three-paragraph
warrant application as conclusory, but we ultimately found
that the evidence in Koerth was properly admitted under the
good faith exception because the warrant’s defects were not
so obvious that a reasonable officer could not have relied on
it in good faith. The line between a conclusory allegation and
factual matter can be difficult to draw, even for experienced
lawyers and judges. Under Leon, law enforcement officers do
not need to patrol that line for magistrate judges. The warrant
Nos. 19-3476, et al. 51
application here could have been more specific, especially
given the heightened constitutional stakes of searching multiple phones, but that lack of specificity does not require suppression of this evidence.
Finally, Moseby argues that the officers should have
known that the warrant was overbroad because it allowed
them to search his phone even after they ascertained that it
did not belong to Grundy. This argument misunderstands the
good-faith question. The warrant authorized the officers to
search every phone found in Grundy’s clubhouse regardless
of who owned it or claimed to own it. A search of a phone
they found there was not outside the scope of the warrant,
even if it was apparent that the phone did not belong to
Grundy. We affirm the denial of Moseby’s motion to suppress
and his conviction.
IV. Sufficiency of the Evidence
Defendants Atwater, Neville, and Beasley all contend that
no rational jury could have convicted them and that the district court should have granted their Rule 29 motions for judgment of acquittal. All three contest their convictions on Count
1 for conspiracy to distribute controlled substances, 21 U.S.C.
§§ 846 & 841(a)(1). Neville also contests his conviction on
Count 24, conspiracy to launder monetary instruments in violation of 18 U.S.C. § 1956(h), and Beasley contests his conviction on Count 17, constructive possession of methamphetamine at Koch’s house in violation of 21 U.S.C. § 841(a)(1).
For challenges based on the sufficiency of the evidence, we
review the evidence in the light most favorable to the government. United States v. Bey, 725 F.3d 643, 649 (7th Cir. 2013). Our
review is deferential but not a rubber-stamp of affirmance. We
52 Nos. 19-3476, et al.
have sometimes said that a defendant seeking a judgment of
acquittal for insufficient evidence faces a “nearly insurmountable hurdle,” e.g., United States v. Johnson, 874 F.3d 990, 998
(7th Cir. 2017) (collecting cases), but the height of the hurdle
the defendant must overcome depends directly on the
strength of the government’s evidence. United States v. Garcia,
919 F.3d 489, 496–97 (7th Cir. 2019), citing United States v.
Jones, 713 F.3d 336, 339 (7th Cir. 2013).
A. Conspiracy or Buyer-Seller?
We consider first Count 1, challenged by all three of these
appellants. There is no doubt there was a large conspiracy, but
we must address this charge one defendant at a time. Charges
for conspiracy to distribute drugs hold “a unique position in
our legal sufficiency jurisprudence.” United States v. Pulgar,
789 F.3d 807, 812 (7th Cir. 2015). The government must prove
beyond a reasonable doubt that the defendant knowingly
agreed, perhaps implicitly, with someone else to distribute
drugs. Conspiracies must be distinguished from buyer-seller
relationships. An agreement to buy drugs (even a large quantity) is not necessarily an agreement to join a drug distribution
conspiracy. United States v. Johnson, 592 F.3d 749, 754 (7th Cir.
2010). To be liable for conspiracy, a defendant must have “‘a
stake in the venture’ and therefore exhibit[] ‘informed and interested cooperation.’” United States v. Brown, 726 F.3d 993,
998 (7th Cir. 2013).
Distinguishing an agreement to distribute drugs from a
buyer-seller relationship can be challenging for judges and juries. The issue is often whether circumstantial evidence allows a jury to infer beyond a reasonable doubt that the defendant agreed to enter the conspiracy. Generally speaking,
circumstantial evidence of an agreement to distribute drugs
Nos. 19-3476, et al. 53
may fail to rule out the alternative plausible inference that
there is just a slightly more formalized buyer-seller relationship. Johnson, 592 F.3d at 755. Where the jury is left with two
equally plausible inferences from the circumstantial evidence,
guilty or not guilty, it must necessarily entertain a reasonable
doubt. Id. (collecting cases).
We use a “totality-of-the-circumstances approach in these
cases.” Pulgar, 789 F.3d at 813. Nonetheless, there are some
rules of thumb that can help us distinguish a conspiracy from
a normal buyer-seller relationship: “sales on credit or consignment, an agreement to look for other customers, a payment of commission on sales, an indication that one party advised the other on the conduct of the other’s business, or an
agreement to warn of future threats to each other’s business
stemming from competitors or law-enforcement authorities.”
Johnson, 592 F.3d at 755–56. We have sometimes described
these factors as supporting an inference of heightened trust,
but evidence of mutual trust alone is insufficient. See Pulgar,
789 F.3d at 815–16.
Where a person repeatedly buys large quantities of drugs
on credit, a jury can infer that the person entered into the conspiracy. Brown, 726 F.3d at 1002. Beyond that, charting the dividing line between a buyer-seller relationship and a conspiracy is as much an art as a science. See Pulgar, 789 F.3d at 813;
see also United States v. Colon, 549 F.3d 565, 567–71 (7th Cir.
2008) (collecting cases in this and other circuits on distinguishing buyer-seller relationships and conspiracies). For example, the district court’s jury instructions here tracked the
Seventh Circuit Pattern Instructions:
A conspiracy requires more than just a buyerseller relationship between a defendant and
54 Nos. 19-3476, et al.
another person. In addition, a buyer and seller
of controlled substances do not enter into a conspiracy to distribute controlled substances
simply because the buyer resells the controlled
substance to others, even if the seller knows that
the buyer intends to resell the controlled substance. To prove a conspiracy, the government
must prove that a buyer and seller had the joint
criminal objective of further distributing controlled substances to others.
See The William J. Bauer Pattern Criminal Jury Instructions of the
Seventh Circuit, § 5.10(A) (2020 Ed.). These can be fine hairs to
split, but the government carries the burden of producing evidence that, if believed, would allow a factfinder to make this
distinction. We now turn to each of these three appellants’ sufficiency challenges.
B. Atwater
The evidence that Derek Atwater was part of the Grundy
conspiracy was sufficient. The evidence at trial, taken in the
light most favorable to the government, showed that he engaged in several large-quantity transactions on credit, which
strongly suggests his agreement to distribute the drugs.
The primary testimony against Atwater at trial came from
David Carroll, one of Grundy’s distributors who sold drugs
to Atwater. Carroll testified extensively as to Atwater’s drug
purchasing habits, telling the jury that Atwater bought oneounce quantities of methamphetamine regularly over a sustained period, and walking the jury through several sales.
Carroll estimated that Atwater bought methamphetamine a
“couple times a week” over the course of four or five months.
Nos. 19-3476, et al. 55
He also testified that “a little under … half” the time, Atwater
purchased drugs on credit. Other evidence indicated an
agreement to distribute the drugs, such as Atwater’s request
that Carroll package the drugs separately, but the credit sales
were the most relevant factor.
If the jurors believed Carroll’s testimony—and we must
presume they did—then they could infer beyond a reasonable
doubt that Atwater agreed to distribute drugs on behalf of
Carroll. Given their history of wholesale-quantity deals on
credit, a reasonable jury could have rejected the alternative
inference that Atwater and Carroll had only a buyer-seller relationship. Brown, 726 F.3d at 1002; see also Colon, 549 F.3d at
569–70 (purchases on credit can distinguish buyers from coconspirators). We affirm Atwater’s conviction.
C. Neville
Neville challenges two of his convictions, for the moneylaundering conspiracy and the larger drug-trafficking conspiracy. We look first at the evidence of money laundering.
The conviction relates to the $84,500 in cash that Grundy had
sent to Vizcarra-Millan to purchase drugs and that was seized
by law enforcement in August 2017. The factual question that
Neville disputes is whether the evidence showed that he had
contributed to that pool. He does not dispute that the other
elements of conspiracy to launder monetary instruments
were met.
The evidence at trial showed that Grundy pooled cash
from various lieutenants to purchase larger quantities of
drugs. The cash seized in the August 2017 bust came from
“ten, twelve, twenty, [or] fifteen” of Grundy’s associates. The
government also offered evidence that Neville contributed to
56 Nos. 19-3476, et al.
a drug distribution ring that he called the “dub club.” Reserving for a moment the question whether Neville was a co-conspirator or merely a buyer, the government offered evidence
of a sustained drug-dealing relationship between Grundy and
Neville. One witness, Carroll, testified that he thought Neville
was present during a meeting among people who lost their
money in the seizure. Finally, soon after Grundy’s cash was
seized, Neville complained to a confidential informant that he
just “took a thirteen thousand dollar loss.”
The jury could reasonably convict. The evidence of Neville’s participation in Grundy’s drug pool was, with the exception of Carroll’s testimony, circumstantial, but the inferential links the jury had to make to convict were all reasonable.
Most of Neville’s arguments stray beyond our standard of review on appeal. He says that the jury should not have concluded that his statement that he “lost” money referred to the
seizure of the $84,500. Perhaps he misplaced another $13,000?
He also says that Carroll’s testimony was vague and had little
corroboration. But we review the evidence in the light most
favorable to the government. The inference that Neville lost
his $13,000 to government agents who had just seized his associate’s cash was reasonable, and Carroll’s testimony was
not so fantastic that we could treat it as incredible as a matter
of law. E.g., United States v. Cherry, 920 F.3d 1126, 1139 (7th
Cir. 2019) (“To find a witness’s testimony to be incredible as a
matter of law, it must have been physically impossible for the
witness to have observed that which he claims occurred, or
impossible under the laws of nature for the occurrence to have
taken place at all.”) (cleaned up).
We turn next to Neville’s Count 1 conviction for conspiracy to distribute drugs. As with Atwater, considerable
Nos. 19-3476, et al. 57
evidence showed that Neville purchased large quantities of
drugs from Grundy. The question is whether the government’s evidence proved that he was a member of the conspiracy. The government did not argue that the evidence of
money laundering is the “something more” that could sustain
the conspiracy conviction, so we do not rest our holding on
that basis. But see United States v. Hopper, 934 F.3d 740, 757
(7th Cir. 2019) (“The Government also presented considerable
testimony establishing that Mr. Hopper pooled his resources
with other members of the conspiracy to obtain methamphetamine at a reduced cost from out-of-state sources. This is circumstantial evidence of an agreement to distribute
Ample evidence allowed the jury to find that Neville was
a member of Grundy’s conspiracy. Neville was a wholesale
buyer. He bought large quantities of drugs directly from
Grundy and Grundy’s business partner, Emilio Mitchell II.
Other evidence tied the two even more closely. Grundy and
Neville once had an extended phone conversation about another Grundy subordinate and whether he was up to the challenges of dealing drugs. Neville also helped other lower-level
members of Grundy’s crew on several occasions. He cross-referred customers to others in Grundy’s orbit a couple of times,
and he stored drugs for another of Grundy’s dealers. Viewing
the evidence in the light most favorable to the government,
this was sufficient evidence of intra-conspiracy cooperation.
See United States v. Maldonado, 893 F.3d 480, 485 (7th Cir. 2018)
(cooperation between defendant and conspirators supported
his conspiracy conviction). Put differently, the jury was entitled to reject the possibility that Neville afforded these professional courtesies to competitors rather than to co-conspirators.
58 Nos. 19-3476, et al.
More evidence also tied Neville to the conspiracy. Early
on in the conspiracy’s timeline, Neville was caught in Albuquerque smuggling cocaine across the country. He concedes
that taking the evidence in the light most favorable to the government, it showed that he was acting as a courier for Grundy.
He also bought pound quantities of methamphetamine on
credit several times. See United States v. Moreno, 922 F.3d 787,
795–96 (7th Cir. 2019) (multiple large purchases on credit supported guilty verdict on conspiracy charge, especially when
paired with evidence of cooperation).
This mosaic of evidence was enough for a reasonable jury
to reject the alternative hypothesis that Neville was a mere
buyer without any additional stake in Grundy’s enterprise.
The courier work alone may be enough to rule out an alternative buyer-seller hypothesis. See United States v. Salinas, 763
F.3d 869, 877–78 (7th Cir. 2014) (affirming courier’s conspiracy
conviction). In addition, Neville time and again helped with
the internal affairs of the conspiracy, providing a sounding
board for Grundy, helping other dealers, and buying pound
quantities of methamphetamine on credit. This all provided
ample evidence that Neville was part of the conspiracy. See
Moreno, 922 F.3d at 795–96 (circumstantial evidence supported conspiracy conviction); cf. United States v. Johnson, 592
F.3d 749, 755–56 (7th Cir. 2010) (circumstantial evidence was
inadequate to support conspiracy conviction where it failed
to distinguish buyer-seller relationship).
Neville attempts to poke holes in various pieces of evidence, but the standard of review is deferential to jury verdicts. For example, he points out that the government did not
corroborate testimony with cell-site location data or wiretaps.
That is an argument for a jury, not a court of appeals. The
Nos. 19-3476, et al. 59
government is not required to put on all conceivable or even
all available corroborating evidence, lest jury trials become
even longer and more complex. We affirm Neville’s convictions.
D. Beasley
Beasley was convicted of three offenses: Count 1, for conspiring with the Grundy gang to distribute drugs; Count 16,
for possessing the methamphetamine found on his person after Susan Koch’s car was pulled over and he was searched;
and Count 17, for constructive possession of the methamphetamine recovered from Koch’s home after she told the officers
to search there.
Beasley does not challenge the sufficiency of the evidence
on Count 16, the 120 grams of methamphetamine found on
his person in the traffic stop. He challenges the other two convictions. First, he claims that his limited involvement with
Carroll was perfectly consistent with a buyer-seller relationship, so that a reasonable jury would necessarily have entertained a reasonable doubt as to whether he joined the conspiracy. He is correct. The evidence was consistent with both a
buyer-seller relationship and nascent involvement in the conspiracy. The jury had no basis to choose the conspiracy finding beyond a reasonable doubt. The jury should not have convicted him on that count. Second, he argues that the evidence
at trial did not establish that he possessed the methamphetamine found at Koch’s home. He is correct that the admissible
evidence did not support a finding of that connection beyond
a reasonable doubt.
The government’s evidence supporting the conspiracy
charge against Beasley was notably weaker than for Neville
60 Nos. 19-3476, et al.
or Atwater. Beasley bought drugs from Carroll several times
over the course of a few weeks. The quantities rose from one
ounce to two ounces to seven ounces. There was evidence
suggesting that Carroll gave him a $100 discount or credit on
one transaction. And during one of the intercepted calls
played at trial, Carroll was heard praising Beasley for being a
good drug salesman.
The evidence was consistent with an inference that
Beasley joined the conspiracy at an inopportune moment, just
as federal agents were closing in. But the evidence was at least
equally consistent with an inference that Beasley and Carroll
had only a buyer-seller relationship, with Carroll’s one-time
discount and encouragement showing only the work of a
good wholesale salesman trying to develop a profitable relationship with a new retailer-customer.
Consider the $100 discount or credit. The evidence did not
make clear whether this was a credit, a discount, or a negotiated lower price. The government’s primary evidence that
Carroll once floated Beasley $100 is a wiretap in which Carroll
agreed to sell Beasley two ounces of methamphetamine for
$700 when the going rate would have been $800. At trial, Carroll described this as a partial front of $100, but he later conceded that he did not extend credit to Beasley.
We do not need to determine whether the $100 is better
described as a front or a discount. Either way it was extremely
weak evidence of conspiracy. See Johnson, 592 F.3d at 756–57
(rejecting government’s attempt to characterize a negotiation
as a credit and dismissing idea that a $30 discount could support inference of conspiracy at all); United States v. Pulgar, 789
F.3d 807, 814 (7th Cir. 2015) (vague evidence of a couple of
fronts insufficient to sustain conspiracy conviction). Even if
Nos. 19-3476, et al. 61
this was a one-time $100 credit, our case law is clear that “occasional sales on credit are consistent with an ordinary buyerseller relationship,” and we must view those credits in context. United States v. Neal, 907 F.3d 511, 516 (7th Cir. 2018)
(quotation marks and citation omitted). In the context of this
new wholesaler-retailer relationship, Carroll’s small, onetime credit looks too much like a courtesy for a new customer
to support an inference beyond a reasonable doubt of an
agreement between the two to distribute drugs further. See
United States v. Brown, 726 F.3d 993, 999–1000 (7th Cir. 2013)
(distinguishing credit sales from consignment and explaining
that small and infrequent credits are consistent with a buyerseller relationship); see also Moreno, 922 F.3d at 794–96 (evidence of two very large credit sales supported conspiracy
conviction within context of year-long wholesale drug-selling
relationship and evidence of cooperation).
The other wisps of evidence are no stronger. Beasley increased his purchases from one ounce to two to seven during
the weeks he bought from Carroll. That is not evidence of conspiracy. Context matters. In some cases, a buyer choosing to
purchase greater quantities of drugs can signify that he has
thrown his lot behind the conspiracy. Here the government
has certainly shown that Beasley took to drug dealing, but
Count 1 required more. The government needed to show beyond a reasonable doubt that Beasley agreed to distribute
drugs for Carroll (which originated with Grundy). Buying
multiple large quantities over a long period of time is not by
itself sufficient to show such an agreement. Moreno, 922 F.3d
at 794, citing Maldonado, 893 F.3d at 485. The same goes for
buying an ounce or two a few times and larger amounts a few
times. The evidence of growing trust between Carroll and
Beasley was consistent with a buyer-seller relationship and
62 Nos. 19-3476, et al.
therefore could not carry the government’s case over the finish line. E.g., Brown, 726 F.3d at 998–99 (discussing Colon’s rejection of “mutual trust” as a potentially dispositive factor).
The final piece of conspiracy evidence that the government cites is Carroll’s encouragement. He congratulated
Beasley on his entrepreneurial success and urged him to sell
more drugs: “You're clowning. I ain’t going to lie to you … I
am proud of you … Just stay motivated. Just stay wanting
more. Don’t get comfortable. You got to want more.” We have
said that “‘stimulation, instigation,’ or ‘encouragement’” can
indicate an agreement to join the conspiracy where the defendant attempts to stimulate interest in the broader conspiracy. United States v. Colon, 549 F.3d 565, 568 (7th Cir. 2008),
quoting Direct Sales Co. v. United States, 319 U.S. 703, 713
(1943). But here, there is no evidence that Beasley was encouraging Grundy or Carroll. Rather, on one occasion, Carroll encouraged Beasley. A seller’s one-time, unspecific encouragement of a buyer is not enough to prove beyond a reasonable
doubt that the buyer agreed to distribute drugs for the seller. See,
e.g., Colon, 549 F.3d at 570 (mutual understanding of intent to
resell is not “germane” to whether there was a conspiracy);
see also Pattern Instruction § 5.10(A) (“a buyer and seller of
[name of drug] do not enter into a conspiracy to []distribute
[name of drug] … simply because the buyer resells the [name
of drug] to others, even if the seller knows that the buyer intends to resell the [name of drug].”).
Carroll encouraged a good customer to keep up his purchases and to keep doing a good job. In the non-criminal economy, such praise and encouragement are routine, without
turning sellers and buyers into joint venturers. See Pulgar, 789
F.3d at 815–16 (evidence consistent with seller being a good
Nos. 19-3476, et al. 63
salesperson cannot rule out buyer-seller relationship), citing
Ruth Klein, The Everything Guide to Being a Sales Rep: Winning
Secrets to a Successful—and Profitable—Career! 176 (2006) (“Successful sales professionals often find that they and their customers become good friends.”). In sum, the evidence against
Beasley did not allow a finding beyond a reasonable doubt of
more than a buyer-seller relationship, so we must reverse his
conviction on Count 1.
Finally, we turn to Beasley’s conviction on Count 17 for
possession of the three ounces of methamphetamine found at
Koch’s house. For this count, the government relied on a theory of constructive possession in which an individual is
deemed to possess contraband items without a showing of
immediate, physical control of the objects. E.g., United States
v. Schmitt, 770 F.3d 524, 534 (7th Cir. 2014). “Constructive possession may be established by demonstrating that the defendant knowingly had both the power and the intention to exercise dominion and control over the object, either directly or
through others.” United States v. Griffin, 684 F.3d 691, 695 (7th
Cir. 2012). In more practical terms, the “owner of an automobile possesses it even when it is parked in a garage and he is
miles away. A tenant possesses the apartment he has rented
even when he is away on a trip.” United States v. Brown, 724
F.3d 801, 805 (7th Cir. 2013).
The government’s theory was that Beasley had recently
bought two ounces of methamphetamine from Carroll in
front of a clothing store called Hangtime. After Susan Koch
was pulled over with Beasley as her passenger, she told the
police that he had spent the night at her house. During a consensual search of her bedroom, she told the officers that
Beasley had left something at her house, and she directed
64 Nos. 19-3476, et al.
them to a shoebox next to a bag from Hangtime. The shoebox
contained three bags of methamphetamine, totaling three
ounces. Soon after the arrest, Koch also told a member of the
larger conspiracy, Robert Lisenby, that Beasley stored methamphetamine at her house and that the police had found it,
and Lisenby relayed that conversation to co-conspirator Carroll. The government did not offer any evidence that Beasley
had a possessory interest in Koch’s home. The only evidence
of any kind of relationship between Beasley and Koch was
that they drove together, that Koch told the officer that
Beasley had spent the night at her house, and that Lisenby
suggested the two dated intermittently.
If Koch had testified at trial that the methamphetamine
was Beasley’s, the conviction would stand, of course. The
problem is that Koch did not testify at trial. Others’ reports of
her statements blaming Beasley for the drugs found in her
home were not admissible as evidence against him. When a
police officer started to testify about Koch’s statements,
Beasley properly objected that they were hearsay, that is, outof-court statements offered to prove the fact of the matter asserted. See Fed. R. Evid. 801(c); Crawford v. Washington, 541
U.S. 36 (2004) (admission of testimonial hearsay violates Confrontation Clause of the Sixth Amendment). Koch’s out-ofcourt statements could not be used to prove that Beasley had
spent the night or that he controlled the drugs found in her
The district court allowed the introduction of Koch’s statement to the officers as “course of investigation” evidence. See
United States v. Law, 990 F.3d 1058, 1063 (7th Cir. 2021) (affirming admission of cumulative course-of-investigation testimony that explained how law enforcement zeroed in on a
Nos. 19-3476, et al. 65
sophisticated, intercontinental sex-trafficking ring). The court
also properly issued a limiting instruction: the officer could
relay Koch’s statements about Beasley having left something
at her house, but the jury could consider the statements only
for their value in explaining why the officer interrupted a traffic stop to drive to Koch’s house and search her bedroom. It
could not consider it as direct evidence of Beasley’s possessory interest.7
7 It is not apparent to us why the government would need to explain
that interruption, except as a means of introducing hearsay. Such risky
uses of course-of-the-investigation testimony show why we “are reluctant
to permit ‘course of the investigation’ rationale for fear of its abuse or misuse.” Law, 990 F.3d at 1063, quoting United States v. Marchan, 935 F.3d 540,
546 (7th Cir. 2019); see also Carter v. Douma, 796 F.3d 726, 736 (7th Cir.
2015) (affirming denial of state prisoner’s habeas petition because he could
not show prejudice under Strickland: “The problem, as we have explained
time and again, is that the ‘course of investigation’ gambit is so often
abused and/or misunderstood that it is an evidentiary and constitutional
minefield.”) (citations omitted); Jones v. Basinger, 635 F.3d 1030, 1046 (7th
Cir. 2011) (granting habeas corpus relief to state prisoner: “While such
‘course of investigation’ evidence usually has little or no probative value,
the dangers of prejudice and abuse posed by the ‘course of investigation’
tactic are significant.”). The course-of-investigation statements here were
particularly dubious. The police had just noted that Koch’s car smelled
like marijuana and had drug-dealing paraphernalia strewn about it. We
doubt that a jury would have wondered why they then searched Koch’s
house. There was no suggestion that “the officers were officious intermeddlers staking out [Koch] for nefarious purposes.” United States v. Silva, 380
F.3d 1018, 1020 (7th Cir. 2004) (reversing conviction and remanding for
new trial). In addition, Koch had obvious incentives to shift responsibility
for the drugs in her bedroom, offering substantial grounds for cross-examination if she had testified. The “course-of-investigation” gambit appears to have been used to admit her statement, albeit with a limiting instruction, without requiring her testimony in court.
66 Nos. 19-3476, et al.
Likewise, Koch’s statements to Lisenby were also hearsay,
but Beasley did not object and therefore forfeited the argument that Koch’s hearsay should not have come in. But
Lisenby’s statements were admitted pursuant to the conspiracy exception to the hearsay rule: at a co-conspirator’s trial,
another co-conspirator’s out-of-court statements made in the
course of and pursuant to the conspiracy may be admitted for
the truth of the matter asserted. See Fed. R. Evid. 801(d)(2)(E).
But for reasons explained above, Beasley was not shown to
have been a member of a conspiracy with Lisenby, Carroll, or
others. Accordingly, Lisenby’s gossip about what Koch had
told him was not admissible as direct evidence against
Beasley. Lisenby’s recorded statements are especially suspect
given that they seem to have been used to launder the out-ofcourt statements by Koch, who as noted did not testify at trial.
Without the two direct connections between Beasley and
the methamphetamine, the evidence that Beasley constructively possessed the drugs found in Koch’s home was too
sparse. The government showed only that Beasley bought
drugs in front of a clothing store and that a different quantity
of drugs was later found in the house of someone he knew
next to a bag from that clothing store. An inference that those
were the drugs that Beasley purchased in front of Hangtime
would have justified further investigation, but it was not
enough to support guilt beyond a reasonable doubt.

Outcome: The convictions of Richard Grundy III, Derek Atwater, Undrae Moseby, Gilberto Vizcarra-Millan, and Ezell Neville are
AFFIRMED. James Beasley’s conviction on Count 16 is
AFFIRMED, but his convictions for Counts 1 and 17 are
REVERSED. Beasley’s case is REMANDED for resentencing
on Count 16.

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