In the
United States Court of Appeals
For the Seventh Circuit
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Nos. 04-2807 & 04-2856
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LARRY D. PETERSON
and LARRY D. WILLIS,
Defendants-Appellants.
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Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 02-CR-224—Lynn Adelman, Judge.
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ARGUED JULY 5, 2005—DECIDED JULY 18, 2005
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Before BAUER, POSNER, and EASTERBROOK, Circuit
Judges.
EASTERBROOK, Circuit Judge. Larry Peterson robbed a
bank. Larry Willis put him up to it, furnished a gun, and
helped with the getaway. The two divided the loot with one
of the bank’s tellers, who helped them pull the job. All
eventually were caught and pleaded guilty. The ex-teller did
not appeal. Willis appealed but his lawyer moves to with-
draw, contending that further argument would be frivolous.
See Anders v. California, 386 U.S. 738 (1967). Peterson’s
2 Nos. 04-2807 & 04-2856
lawyer has not thrown in the towel, because his client
(unlike Willis) entered a conditional plea, reserving an issue
for appellate review. See Fed. R. Crim. P. 11(a)(2). Later
Peterson moved to withdraw the plea and go to trial. The
district judge denied this motion, as he had denied Peter-
son’s earlier motion to suppress his confession. Logically the
first question is whether the plea is valid, so we start there.
Peterson’s principal contention is that the plea is invol-
untary because counsel falsely promised him that his federal
sentence would run concurrently with any punishment under
state law. The district judge found, however, that Peterson
had not entered his plea under any such misapprehension.
During the proceedings that led to acceptance of his plea,
Peterson was asked whether anyone had promised him any-
thing not mentioned in the written plea agreement. He gave
a negative answer. Later his lawyer said that he planned to
argue for a concurrent sentence but that the prosecutor “has
not agreed to any of that with me.” The judge asked Peterson
whether he understood that the sentence need not be con-
current; Peterson said that he did. If these representations
to the judge are true, his current submission must be false.
Judges need not let litigants contradict themselves so
readily; a motion that can succeed only if the defendant
committed perjury at the plea proceedings may be rejected
out of hand unless the defendant has a compelling explana-
tion for the contradiction. See, e.g., United States v. Stewart,
198 F.3d 984 (7th Cir. 1999); United States v. Messino, 55
F.3d 1241, 1248 (7th Cir. 1995); United States v. Ellison, 835
F.2d 687, 693 (7th Cir. 1987).
Peterson does not present a compelling, or indeed any,
explanation. He has tried instead to avoid self-contradic-
tion. The motion to withdraw the plea has been supported
by counsel’s say-so rather than evidence. Peterson’s current
lawyer filed an affidavit saying that Peterson assured him
that his former lawyer had promised a concurrent sentence,
but Peterson has been unwilling to put his own name on
Nos. 04-2807 & 04-2856 3
such an affidavit and expose himself to a prosecution for
making inconsistent declarations under oath. See 18 U.S.C.
§1623. The lawyer’s affidavit, being hearsay, is no evidence
at all. At oral argument counsel insisted that Galbraith v.
United States, 313 F.3d 1001 (7th Cir. 2002), permits a
defendant to secure an evidentiary hearing on the basis of
hearsay routed through his lawyer. Galbraith establishes
nothing of the kind. We remarked in passing that neither
the defendant nor his lawyer in that case had submitted an
affidavit; we did not say (let alone hold) that hearsay in an
affidavit from counsel could be submitted in lieu of an
affidavit by someone competent to testify about the dis-
puted issue. Lawyers often have personal knowledge of
material issues, such as what was said in the discussions
leading to the plea. We cannot imagine any reason to relax
the normal rules that limit judicial consideration to those
statements in affidavits that would be admissible if made
on the stand. Otherwise it would be all too easy to route
bogus contentions through counsel and avoid prosecution
for telling lies to the court.
Peterson’s other arguments in support of withdrawing the
plea likewise blame counsel for one or another supposed
shortcoming and have equally little record support, as the
district judge observed. Moreover, because Peterson has not
established that he would not have pleaded guilty had
counsel acted differently (for example, spending more time
discussing opportunities to impeach the prosecutor’s
witnesses at trial), Peterson is not entitled to relief. See Hill
v. Lockhart, 474 U.S. 52, 58-60 (1985). Further discussion
is unnecessary.
Because the district judge did not abuse his discretion in
denying Peterson’s motion to withdraw his plea, we must
decide the issue reserved in the plea agreement: whether
the confession was secured in violation of the principles
announced in Miranda v. Arizona, 384 U.S. 436 (1966).
After Peterson’s arrest, federal agents laid out the evidence
4 Nos. 04-2807 & 04-2856
against him. The narration took about 50 minutes. Only
then did the officers administer Miranda warnings, obtain
waivers (written and oral), and secure Peterson’s confession
(written and oral). Peterson contends that the long sum-
mary of the evidence was a form of interrogation because it
was designed to provoke a response, see Rhode Island v.
Innis, 446 U.S. 291 (1980), and that his statements must be
suppressed because the interrogation preceded the warnings
and waiver. The problem with this argument is that none
of his own statements preceded the warnings. There is no
abstract “right to be warned.” See United States v. Patane,
542 U.S. 630 (2004). Miranda creates a rule of evidence:
statements made during custodial interrogation by a person
who has not been informed of, and waived, his privilege
against compulsory self-incrimination (and the right to
counsel designed to facilitate its invocation) are inadmissi-
ble in criminal proceedings.
Peterson did not make any pre-warning statement. He
relies principally on Missouri v. Seibert, 542 U.S. 600
(2004), which holds that post-warning statements are inad-
missible if they duplicate pre-warning statements in-
tentionally elicited in an effort to evade Miranda. (This is
the understanding of Seibert’s holding shared by Justices
Kennedy and Breyer, whose votes were essential to that
fractured decision. See United States v. Stewart, 388 F.3d
1079, 1086-90 (7th Cir. 2004).) The thinking behind this is
that a suspect who has been induced to make a statement
may see little point in clamming up after warnings have
been given; he may think that the cat is out of the bag.
Moreover, eliciting a statement before the suspect has been
informed of his rights implies that the warnings and rights
are charades, which reduces the chance that the suspect
will invoke his constitutional privilege. The tactic used in
Peterson’s case—a long speech during which the officers
told the suspect to be silent and repeated that admonition
every time he tried to open his mouth—does not undermine
Nos. 04-2807 & 04-2856 5
Miranda in either of these ways. By the time Peterson
received the Miranda warnings he had not said one word;
none of his rights had been diluted.
The officers’ approach is risky; if Peterson had spoken out
of turn, then Seibert would pose a problem for the pros-
ecutor. (Whether the problem would be insuperable depends
on the officers’ mental states; the Justices could not agree
in Seibert which had what consequences and how the
officers’ thinking would be demonstrated.) Here the risks
did not come to pass, because Peterson heeded the instruc-
tion not to talk prematurely. Seibert does not require the
exclusion of his statements.
As for Willis: His only potential appellate issues concern
the sentence. The presentence report proposed an enhance-
ment for leadership. See U.S.S.G.§3B1.1(c). Defense counsel
opposed that in part because, he asserted, Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), precluded
the judge from making the essential factual findings. The
judge decided not to increase the sentencing range under
§3B1.1(c) and inquired whether Willis had any other objec-
tions based on Blakely or its predecessors back to Apprendi
v. New Jersey, 530 U.S. 466 (2000). Counsel said no. The
judge then asked whether it was fair to state that Willis
was “waiving any rights . . . under Blakely and Apprendi”
other than his objection to a leadership enhancement.
Counsel answered: “We are, because we had agreed to those
[other] enhancements in the plea agreement.” This
waiver—plus the fact that the sentence is within a properly
constructed Guideline range—are why counsel now deems
an appeal frivolous.
Rights under the sixth amendment may be waived.
Blakely says so, observing that “a defendant . . . may con-
sent to judicial factfinding as to sentence enhancements,
which may well be in his interest if relevant evidence would
prejudice him at trial.” 124 S. Ct. at 2541. That’s what
6 Nos. 04-2807 & 04-2856
Willis did, agreeing to certain enhancements as part of the
plea bargain. See also Shepard v. United States, 125 S. Ct.
1254, 1263 n.5 (2005). The parties did not anticipate the
outcome of United States v. Booker, 125 S. Ct. 738 (2005),
which solved the sixth amendment problem by making the
Guidelines non-mandatory. But waivers are not undone by
subsequent legal developments, including those in Booker.
See United States v. Bownes, 405 F.3d 634 (7th Cir. 2005).
Willis waived all of his rights under this line of decisions;
the waiver did not depend on prevision about exactly what
those rights would turn out to be. Any attempt to resurrect
a sixth amendment argument now, or to seek the Booker
remedy, would be vain.
In Willis the motion to withdraw is granted, and the
appeal is dismissed as frivolous. In Peterson the judgment
is affirmed.
A true Copy:
Teste:
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Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-18-05