United States v. Turner

In the

United States Court of Appeals
For the Seventh Circuit

No. 09-2592

U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.

M ATTHEW A. T URNER,
Defendant-Appellant.

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

A RGUED M ARCH 28, 2011—D ECIDED JULY 11, 2011

Before K ANNE, S YKES, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. In January 2009, a jury con-
victed Matthew A. Turner for conspiracy to possess and
distribute at least five kilograms of cocaine and at
least fifty grams of crack cocaine, and for possession of
a firearm in furtherance of a drug trafficking offense.
Turner raises two issues on appeal, each for the first time.
First, he contends that he was wrongfully deprived of
his Sixth Amendment right to counsel of his choice
2 No. 09-2592

when the district court disqualified his retained attor-
ney from the case. Second, Turner complains that the
prosecutor’s comments during closing argument invited
the jury to draw an improper inference from the
evidence and amounted to prosecutorial misconduct.
We affirm. The district court did not plainly err by dis-
qualifying Turner’s attorney for a conflict of interest or
by allowing the prosecutor’s remarks, without objection,
during closing argument.

I. Factual and Procedural Background
We recount the facts in the light most favorable to
the jury’s verdict. See United States v. Hill, 552 F.3d
541, 543 n.1 (7th Cir. 2008). In September 2007, police
monitoring a controlled drug delivery arrested de-
fendant Turner and four others at a home on the south
side of Chicago. Police obtained valid consent to search
the house. Beneath the bathroom cabinets and kitchen
sink they found large quantities of crack and powder
cocaine, a large amount of cash, drug paraphernalia,
cocaine packaging materials, and two firearms.
Turner and the others were indicted in the Central
District of Illinois for conspiracy to possess and
distribute at least five kilograms of cocaine. Turner re-
tained a private defense attorney, Steven C. Rueckert. In
August 2008, however, the district court disqualified
attorney Rueckert in response to the government’s
“Notice of Potential Conflict of Interest.” Turner was
then assigned court-appointed counsel.
No. 09-2592 3

The case proceeded, and by October 2008 Turner faced
a second superseding indictment charging him with
Count I, conspiracy to possess and distribute at least
five kilograms of cocaine and more than fifty grams of
crack cocaine, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A),
and 846, and Count II, use of a firearm in furtherance of
a drug trafficking crime, see 18 U.S.C. § 924(c)(1)(A).
By the time of trial, Turner’s four co-defendants had
all pled guilty. Three of them testified about Turner’s
involvement in the cocaine trade, and the government
presented additional physical evidence, as well
as evidence of Turner’s unexplained wealth. Turner
took the stand on his own behalf. He testified that he
had been involved in the cocaine trade but had
stopped dealing just before the period charged in the
indictment. Turner also called several character
witnesses to testify that they had never seen him with
drugs or a gun. During closing argument, Turner
argued that his co-conspirators were using him as a
patsy in order to obtain favorable treatment. The gov-
ernment responded by attacking Turner’s credibility,
characterizing his testimony about leaving the drug
business shortly before the charged conspiracy began
as “too convenient to be believed.”
The jury found Turner guilty on both counts of the
second superseding indictment. The district court sen-
tenced Turner to life imprisonment on the cocaine
charge and sixty months on the firearm charge. Turner
appeals his convictions.
4 No. 09-2592

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

1. The Facts
Attorney Rueckert represented Turner until the
district court disqualified Rueckert in response to the
government’s “Notice of Potential Conflict of Interest,”
filed in August 2008. The government had learned that
Turner, who had not been gainfully employed for some
time, obtained Rueckert’s services by paying him
$25,000 in cash, delivered by Turner’s girlfriend while
he was in jail. Intending to make an issue of Turner’s
unexplained wealth, including the attorney fee paid in
cash, the government argued that Rueckert had landed
“front and center as a witness in this case” and therefore
could not continue to represent Turner. At a pretrial
hearing held on August 13, 2008, the district judge
raised the issue with the parties. After the government
stated its position for the record, the following ex-
change occurred:
THE COURT: Do I understand correctly you plan to
call Mr. Rueckert as a witness?
No. 09-2592 5

[GOVERNMENT]: Yes.
THE COURT: I mean, obviously if you’re permitted
to do that, then he can’t represent Mr. Turner. That’s
the bottom line. Mr. Rueckert, would you respond
to this, please?
MR. RUECKERT: Well, Your Honor, I’ve read the
motion and I have spoken to [the prosecutor] about
this. I mean, if they’re going to call me as a witness,
I think the case law is pretty clear. I can’t be both.
THE COURT: I agree with that. Obviously the ques-
tion that needs to be asked before that or answered
before that is [whether] it is appropriate for them
to call you as a witness. So the question to you is
based on what you have learned from them orally
and based on their written pleadings, do you have
a legal argument to make at this point that they
cannot appropriately call you as a witness?
MR. RUECKERT: Well, obviously I can’t talk about
how the money was arranged or any of Mr. Turner’s
involvement in arrangement of the money. I can’t
do that. But I guess if part of their case is, you know,
to prove up how much I got paid, based on the
cases they’ve cited, I see no legal argument why
they can’t do that.
At the conclusion of this exchange, the district court
disqualified attorney Rueckert from the case. At Turner’s
trial, the government did not actually call Rueckert to
testify. The defense raised no objection about the choice
of counsel issue until appeal.
6 No. 09-2592

2. Standard of Review
We generally review a decision to disqualify counsel
for an abuse of discretion. United States v. Bender, 539 F.3d
449, 454 (7th Cir. 2008), citing Wheat v. United States,
486 U.S. 153, 164 (1988). Where a defendant and his
attorney fail to preserve an argument by properly ob-
jecting, however, a different standard of review applies.
A defendant’s state of mind at the time he fails to
object determines whether the failure constitutes waiver
or forfeiture. “A waiver is ‘the manifestation of an in-
tentional choice not to assert [a] right,’ distinguishing
it from forfeiture, which is an accidental or negligent
omission (or ‘an apparently inadvertent failure to assert
a right in a timely fashion’).” United States v. Walton,
255 F.3d 437, 441 (7th Cir. 2001), quoting United States
v. Cooper, 243 F.3d 411, 416 (7th Cir. 2001). While waiver
extinguishes all appellate review of an issue, forfeited
issues are reviewable for plain error. Id.
We need not decide here the defendant’s state of mind
at the time of his failure to object. The government con-
ceded at oral argument that Turner’s failure should not
be considered a waiver of the issue. The government
argued instead that the issue was forfeited and that
we should review for plain error.
Turner, on the other hand, makes two arguments
against a finding of either waiver or forfeiture. While
he acknowledges the absence of any objection in the
record, he contends that the Sixth Amendment right to
counsel is so personal in nature that only the client
himself, and not his attorney, could have forfeited it. We
No. 09-2592 7

are not persuaded. The ethical rules governing the
legal profession prohibit lawyers from continuing to
represent a client in many conflict of interest situations
even if the client would prefer for the representation
to continue. See, e.g., Analytica, Inc. v. NPD Research,
Inc., 708 F.2d 1263, 1266 (7th Cir. 1983) (lawyer may
not represent an adversary of his former client if the
subject matter of the two representations is “substantially
related”; rule encourages clients to feel comfortable
sharing confidences with their attorneys); Illinois Rules
of Professional Conduct 1.16(a)(2) (1990) (“A lawyer
representing a client before a tribunal shall withdraw
from employment (with permission of the tribunal if such
permission is required) . . . if . . . the lawyer knows or rea-
sonably should know that such continued employment
will result in violation of these Rules”) (emphasis
added).1 These rules are inconsistent with an assertion
that the right to counsel of choice guarantees any client,
including a criminal defendant, the exclusive right to
decide when the attorney-client relationship begins and
ends.
In a similar vein, Turner argues that the district court
should have asked him personally whether he would
like to waive the conflict in question. Again, we are not
persuaded. It is well-settled that, under certain circum-

1
Illinois amended its Rules of Professional Conduct for
attorneys effective January 1, 2010, but we quote and discuss
here the version of the rules in effect in 2008 when Rueckert
was disqualified.
8 No. 09-2592

stances, a district court may remove defense counsel
from the case even in the face of a criminal defendant’s
proffered waiver. See United States v. Turner, 594 F.3d
946, 952 (7th Cir. 2010) (reviewing cases). The district
court was under no legal obligation to seek out a waiver
it could have overridden, particularly where defense
counsel agreed he was required to withdraw. Ac-
cordingly, we treat Turner’s failure to object as a for-
feiture and review for plain error.
On review for plain error, a convicted defendant
must show that: (1) the error complained of actually
occurred; (2) the error was clear or obvious; (3) the error
affected his substantial rights (i.e., he probably would
not have been convicted absent the error); and (4) the
error seriously impugned the judicial proceeding’s
fairness, integrity, or public reputation. United States v.
Tanner, 628 F.3d 890, 898 (7th Cir. 2010), citing United
States v. Anderson, 604 F.3d 997, 1002 (7th Cir. 2010).
The third prong of the plain error test—whether the
error affected the defendant’s substantial rights—calls
for essentially the same inquiry as harmless error analy-
sis. United States v. Wheeler, 540 F.3d 683, 690 (7th Cir. 2008),
citing United States v. Ross, 77 F.3d 1525, 1540 (7th Cir.
1996). An argument can be made that the third prong
should drop out of the plain error analysis where the
error is “structural.” The erroneous deprivation of the
right to chosen counsel constitutes a structural error and
entitles an aggrieved defendant to reversal without a
showing of prejudice. See United States v. Gonzalez-
Lopez, 548 U.S. 140, 150 (2006) (“We have little trouble
No. 09-2592 9

concluding that erroneous deprivation of the right to
counsel of choice, with consequences that are neces-
sarily unquantifiable and indeterminate, unquestionably
qualifies as structural error.”), quoting Sullivan v.
Louisiana, 508 U.S. 275, 282 (1993) (quotation marks omit-
ted). It is not a long step to argue that prejudice
also should be presumed (or need not be shown inde-
pendently) under the plain error standard. The
Supreme Court, however, has specifically reserved the
question of the application of the third plain error prong
to structural errors. See Puckett v. United States, 129
S. Ct. 1423, 1432 (2009); see also United States v. Marcus,
130 S. Ct. 2159, 2164 (2010) (citing Puckett on this point).
We need not resolve that methodological issue defin-
itively here because we find no sufficiently clear error.
There is a similar issue regarding the fourth prong of
the plain error test when a structural error of the sort
alleged here occurs. It seems no easier to determine
whether an action with “unquantifiable and indetermi-
nate” consequences on the course of trial proceedings
“seriously impugned” those proceedings’ fairness than
it is to inquire whether it effectively prejudiced the de-
fendant’s case. Because we find no sufficiently clear error,
however, we also do not reach this issue under the
fourth prong of the plain error test.

3. Analysis
For an error to be “plain,” it must be of such an obvious
nature that “the trial judge and prosecutor were derelict
in countenancing it, even absent the defendant’s timely
10 No. 09-2592

assistance in detecting it.” United States v. Frady, 456 U.S.
152, 163 (1982). “It cannot be subtle, arcane, debatable,
or factually complicated. It must be—plain; but it needn’t
be blatant.” United States v. Caputo, 978 F.2d 972, 975 (7th
Cir. 1992). We find no plain error here.
The Sixth Amendment gives the accused in criminal
cases the right to hire attorneys of their choice. Turner,
594 F.3d at 948, citing Wheat, 486 U.S. at 159. The right has
been regarded as “the root meaning of the constitutional
guarantee” in the Sixth Amendment. Gonzalez-Lopez,
548 U.S. at 147-48, citing Wheat, 486 U.S. at 159. Even so,
a defendant’s choice of counsel may be overridden
and counsel may be disqualified where an actual conflict
of interest or a serious potential for conflict exists.
Wheat, 486 U.S. at 163-64 (affirming refusal to accept
defendant’s waiver of attorney’s “serious potential” for
conflict of interest); accord, Turner, 594 F.3d at 952. A
conflict that amounts to a breach of the code of
professional ethics “obviously qualifies” as an actual
conflict of interest of the sort that allows the trial court
to disqualify counsel regardless of a defendant’s offer
to waive. Turner, 594 F.3d at 952.
Rules of professional conduct for attorneys have long
recognized that having an attorney testify either for or
against his client can put great stress on our system
of justice. The specific issue here arose under the Illinois
provision then governing when an attorney may be
called as a witness other than on behalf of his client. The
government’s notice of potential conflict of interest
relied on Illinois Rule of Professional Conduct 3.7(b),
which stated in 2008:
No. 09-2592 11

If a lawyer knows or reasonably should know that
the lawyer may be called as a witness other than on
behalf of the client, the lawyer may accept or con-
tinue the representation until the lawyer knows or
reasonably should know that the lawyer’s testimony
is or may be prejudicial to the client.
The Central District of Illinois has adopted the Illinois
Rules of Professional Conduct. Under the applicable
version of Rule 3.7(b), attorney Rueckert faced a
conflict that could amount to a breach of the code of
professional ethics. As soon as he read the govern-
ment’s notice of potential conflict, he knew or reasonably
should have known that he could be called as a witness
against his client, at least unless there was a persuasive
reason to prevent the government from doing so.
Rueckert also knew or reasonably should have known
that the testimony the government sought—about his
client’s unexplained wealth—would be prejudicial to
his client. If the government planned, and was legally
permitted, to call Rueckert as a witness against his
client, he could not continue to represent him.
Turner argues on appeal that case law actually
forbade the government from calling attorney Rueckert
to testify under these circumstances, negating any
alleged Rule 3.7(b) conflict. Turner relies on United States
v. Britton, 289 F.3d 976 (7th Cir. 2002), where we said:
“where evidence is easily available from other sources
and absent extraordinary circumstances or compelling
reasons, an attorney who participates in the case should
not be called as a witness.” 289 F.3d at 982, quoting
12 No. 09-2592

United States v. Dack, 747 F.2d 1172, 1176 n.5 (7th Cir.
1984) (quotation marks omitted).
In support of this point, Turner argues that the gov-
ernment could have introduced the same evidence of
unexplained wealth—the $25,000 cash payment to
attorney Rueckert—through his girlfriend, who delivered
the sum on his behalf. Turner also calls the proposed
attorney testimony “cumulative,” insisting that the gov-
ernment could just as easily have brought his wealth to
the jury’s attention with evidence of his luxury vehicle
purchases. Finally, Turner argues that the government’s
decision not to call attorney Rueckert to testify at
trial demonstrates that he was not a necessary witness.
We are not persuaded. The fact that Rueckert did not
testify at trial does not mean that his testimony did not
appear necessary during pretrial proceedings. The
issue was presented to the district court for decision
long before trial. A district court faced with a potential
conflict of interest must act “not with the wisdom of
hindsight after the trial has taken place, but in the
murkier pretrial context when relationships between
parties are seen through a glass, darkly.” Wheat, 486 U.S.
at 162. Given the facts available during the murky
pretrial phase, we find no plain error such that the
district court could have been deemed “derelict in counte-
nancing” Rueckert’s disqualification. See Frady, 456 U.S.
at 163.
At the time the issue arose, the government was rea-
sonably concerned that Turner’s girlfriend would refuse
to testify, meaning that the same testimony would not
No. 09-2592 13

in fact be available from an alternative source. While
the government’s case against Turner at trial turned out
to be very strong, it was based in large part on coopera-
tive testimony from Turner’s co-defendants who pled
guilty. As of the August 13, 2008 hearing when
Rueckert was disqualified, they had not yet pled guilty.
At that time, all evidence of unexplained wealth may
well have seemed necessary to the government’s case.
These facts undermine Turner’s argument that the gov-
ernment should not have expected to call Rueckert as
a witness against Turner, so that he should not have
been disqualified.
We do not take the disqualification of defense counsel
lightly, especially when the same evidence might have
been available through alternate sources or had limited
probative value. See United States v. Gearhart, 576 F.3d
459, 464 (7th Cir. 2009); Britton, 289 F.3d at 982-83. We are
wary of the potential for abuse that comes with allowing
the government to disqualify the defendant’s chosen
attorney. The issue in this case would be closer if we
encountered it, for example, on review of a disqualifica-
tion order entered over a vigorous objection. In this
case, however, the district court properly raised the
issue with counsel, and the issue was promptly for-
feited. We find no plain error in the district court’s deci-
sion to disqualify attorney Rueckert.

B. Closing Argument
Turner’s second issue on appeal is that comments
made by the prosecutor during closing argument
14 No. 09-2592

amounted to prosecutorial misconduct because they
invited the jury to draw an improper inference of his
guilt for the charged crimes based on his admission of
prior involvement in the drug trade.

1. The Facts
In his closing argument, Turner argued that he was
innocent of the crime actually charged and that his
former co-defendants, who testified against him in ex-
change for leniency, were just looking for someone to
take the fall. Turner argued that his checkered past
made him the perfect “patsy.” This argument was based
on Turner’s own testimony. Taking the stand in his own
defense, Turner claimed that, although he had been a
cocaine dealer in the past, he stopped dealing in
October 2005, just before the beginning of the conspiracy
charged in the indictment. At that time, he said, the
murder of his friend and business partner persuaded
him that the risks were too high.
On rebuttal, the government argued that Turner was
the one looking for a patsy. The government relied
on telephone calls Turner made from jail while he was
awaiting trial. Turner asked Carl Hopkins, one of his co-
conspirators, to take the fall for the group’s misdeeds.
Recordings of these calls were admitted during trial.
Next, the prosecutor commented on Turner’s testimony:
You heard his own words. You heard it. You heard
him testify. There weren’t just two drug dealers that
testified here. It wasn’t just Mr. Mejia, and it wasn’t
No. 09-2592 15

just Mr. Hopkins. There were three. It was this Defen-
dant. There was this Defendant who told the story
that he was a drug dealer. He used to deal all kinds
of drugs, made a lot of money, that he just put in
a shoe box someplace, and kept it at his mom’s house.
In 2005, coincidentally when this conspiracy is
charged, that’s when he quit and he didn’t do any-
thing any more, and he was completely out of it.
You saw his demeanor as he testified. You heard
some of the things he said. And one of the things
that you need to bring to the process is your common
sense.
Ask yourself, does that make sense? It doesn’t make
any sense at all. Doesn’t make any sense at all. It is
awfully convenient, but it doesn’t make any sense.
Turner did not object to this line of argument at the time.
He now contends, though, that the prosecutor made a
prohibited “once a drug dealer, always a drug dealer”
argument, effectively asking the jury to convict him for
this charged crime based on his involvement with
similar activities in the past. See United States v.
Simpson, 479 F.3d 492, 503 (7th Cir. 2007), abrogated in
part on other grounds, United States v. Boone, 628 F.3d
927, 933 (7th Cir. 2010).

2. Standard of Review
Whether a prosecutor’s comments to the jury rise to
the level of prosecutorial misconduct depends initially
16 No. 09-2592

on whether the prosecutor’s conduct was improper.
Simpson, 479 F.3d at 503, citing United States v. Hale, 448
F.3d 971, 986 (7th Cir. 2006). If so, we then ask whether
the conduct prejudiced the defendant. Id. When a defen-
dant objects for the first time on appeal that a prosecutor
made improper comments during closing arguments,
we review only for plain error. United States v. Bowman,
353 F.3d 546, 550 (7th Cir. 2003). Because Turner did not
object at trial, he must establish “not only that the
remarks denied him a fair trial, but also that the out-
come of proceedings would have been different absent
the remarks.” Id., quoting United States v. Sandoval, 347
F.3d 627, 631 (7th Cir. 2003); United States v. Nunez, 532
F.3d 645, 653 (7th Cir. 2008). An error is not plain unless
it is of such an obvious nature that the trial judge and
prosecutor were “derelict in countenancing” it, even
absent the defendant’s timely objection. Frady, 456 U.S.
at 163.

3. Analysis
A district court has “considerable discretion” in super-
vising the arguments of counsel. United States v. Amerson,
185 F.3d 676, 685-86 (7th Cir. 1999). In this case, the
district court was not derelict in allowing the prosecutor’s
remarks without objection. We find no plain error.
Turner’s argument that the remarks were impermissible
relies on United States v. Simpson, 479 F.3d 492. In that
case, an FBI agent testified that the defendant confessed
to working as a cocaine dealer for several years, and to
No. 09-2592 17

having made deliveries for a named individual. When
the agent asked about a specific transaction with
that named individual, the defendant said he could not
remember. Id. at 495. The prosecutor referred to these
admissions during closing argument, stating:
And you know what the defendant told him: Yes, I’m
a crack dealer. I’ve been a crack dealer for three to
four years, and I could have done this transaction,
2 1/4 ounces, on behalf of Michael Hatton, but I
don’t remember, because my view of the inference,
the inference being he’s done so many that he
couldn’t remember this one.
Id. Unlike Turner in this case, Simpson objected immedi-
ately. We agreed with the defendant that these remarks
asked the jury to draw an improper inference. Id. at
503. The argument did not refer to the facts of the trans-
action actually charged and quite plainly asked the jury
to consider the defendant’s admission of other crimes
as evidence of the one he could not remember. Id.
This case is much less clear-cut. A canonical statement
in this field is that, while a prosecutor “may strike hard
blows, he is not at liberty to strike foul ones.” Berger v.
United States, 295 U.S. 78, 88 (1935). The operative
portion here is that the prosecutor was allowed to
strike hard blows. “Once a drug dealer, always a drug
dealer” arguments are considered foul blows, but “so
long as the evidence supports the comments, prosecutors
may speak harshly about the actions and conduct of the
accused.” United States v. Durham, 211 F.3d 437, 440 (7th
Cir. 2000), citing United States v. Cook, 432 F.2d 1093, 1106-
18 No. 09-2592

07 (7th Cir. 1970). A comment on the defendant’s cred-
ibility that is supported by the evidence is a hard blow,
but a fair one. “Where the character and credibility of
the defendant are at issue and the evidence allows the
inference that the defendant has been less than truthful,
the prosecutor does not err in closing argument by refer-
ring to the defendant as a liar.” United States v. Catalfo,
64 F.3d 1070, 1080 (7th Cir. 1995).
Turner placed his character and credibility at issue
with his own testimony and the testimony of the other
witnesses he called. The prosecutor’s comments were
intended to make the jury reject that testimony in light
of the weight of evidence for the government. The
theme throughout was that Turner’s story was just
too convenient to be believed. It is acceptable under
these circumstances for a prosecutor to argue that the
defendant was lying. It is no less acceptable to highlight,
through rhetorical questions, the improbable and conve-
nient nature of his testimony, leaving the jurors to
draw their own conclusions about his truthfulness.
The prosecutor’s remarks were, at the very least, not
so clearly improper that the trial judge was derelict in
his duty for countenancing them, even absent any
timely objection by the defense. There was no plain
error, and we need not proceed to an analysis of any
possible prejudicial effect.
The judgment of the district court is A FFIRMED.

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