NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 5, 2009*
Decided November 24, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
Nos. 06‐1478 & 08‐3054
UNITED STATES OF AMERICA, Appeals from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 04 CR 986‐1
DERRICK MOSLEY,
Defendant‐Appellant. Samuel Der‐Yeghiayan,
Judge.
_____________________
*
After examining the briefs and records, we have concluded that oral argument in these
consolidated appeals is unnecessary. Thus, the appeals are submitted on the briefs and records.
See FED. R. APP. P. 34(a)(2).
Nos. 06‐1478, 06‐2740 & 08‐3054 Page 2
No. 06‐2740
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 98 CR 700‐1
DERRICK MOSLEY,
Defendant‐Appellant. Milton I. Shadur,
Judge.
O R D E R
While on supervised release for a 1999 fraud conviction, Derrick Mosley tried to
extort money from gospel artist DeLeon Richards‐Sheffield, the wife of former New York
Yankees player Gary Sheffield. Mosley’s attempt led both to the revocation of his
supervised release and to new federal convictions for using interstate communications to
extort money, 18 U.S.C. § 875(d), and wire fraud, id. § 1343. In these consolidated appeals
Mosley challenges the new convictions and the term of reimprisonment he received on
revocation of his supervised release.
Mosley’s extortion scheme started with a November 2004 e‐mail to Richards‐
Sheffield. There he asserted that he possessed a video tape of her having sex with singer‐
songwriter Robert “R.” Kelly. When Mosley did not receive a reply to his e‐mail, he phoned
the Yankees’ media‐relations department; someone there referred him to Rufus Williams,
Sheffield’s agent and manager, and Williams in turn contacted the FBI.
Over the next ten days Williams, now cooperating with the FBI, recorded a series of
phone conversations and meetings with Mosley, a self‐described minister and community
activist. Mosley expressed moral outrage about the tape and asserted that he was worried
that disclosure could hurt Richards‐Sheffield’s reputation. He opined that she desperately
needed spiritual counseling, which he (conveniently) could provide—along with the
tape—for $20,000. Mosley reminded Williams that anyone else might have sold the tape to a
tabloid, and he threatened to “move forward” if a deal was not struck. He was arrested afer
giving Williams the number of an account to which he wanted the money wired.
At his trial in November 2005, Mosley did not present any evidence. His lawyer
argued that Williams had misunderstood Mosley’s intentions, which were only to help
Nos. 06‐1478, 06‐2740 & 08‐3054 Page 3
Richards‐Sheffield. The jury found the government’s story more persuasive and convicted
Mosley; he was sentenced in January 2006 to 27 months in prison and five years of
supervised release. The district court ordered Mosley to undergo a mental‐health evaluation
as a special condition of supervision. Meanwhile, the new convictions prompted the
government to move to revoke Mosley’s supervised release from his 1999 bank fraud
conviction. A different judge of the district court obliged in June 2006 and imposed a
sentence of 15 months in prison and two years’ supervised release; the prison term was to
run consecutively to the new sentence, and the supervised release was to be concurrent with
Mosley’s supervision on the new convictions. Mosley completed the consecutive prison
terms in February 2008 and has started his terms of supervised release.
Mosley is acting pro se in these appeals, but in the district court he was represented
by appointed counsel. In the first of his four challenges to the new convictions, Mosley
argues that the district court erred in denying his lawyer’s two, ex parte requests for
authorization to hire a private investigator. See 18 U.S.C. § 3006A(e). The district court had
rejected the requests for several reasons: Mosley, it found, was exaggerating the scope of the
charges; he was capable of investigating the case without help; and he had failed to furnish
adequate proof of his indigence. Mosley then resubmitted essentially the same skeletal
request but with financial information and a list of twelve people he wanted interviewed;
the court again denied the motion. It commented that Mosley could hire an investigator
himself with the $40,000 in currency that he admitted having in his apartment.
Our review is for abuse of discretion. United States v. King, 356 F.3d 774, 778 (7th Cir.
2004). Under the Criminal Justice Act, courts may authorize additional services that are
“necessary for adequate representation.” 18 U.S.C. § 3006A(e)(1); see United States v. Smith,
502 F.3d 680, 686 (7th Cir. 2007), cert. denied, 128 S. Ct. 1270 (2008). An indigent defendant
wanting to hire an investigator must first provide a specific statement explaining the need,
United States v. Knox, 540 F.3d 708, 718 (7th Cir. 2008), cert. denied, 129 S.Ct. 1525 (2009);
United States v. Goodwin, 770 F.2d 631, 634 (7th Cir. 1985). If he does so, the court must then
assess whether an investigator is likely to help the defendant establish a “plausible
defense.” See United States v. Winbush, 580 F.3d 503, 509‐10 (7th Cir. 2009). These
requirements ensure that the government is not asked to fund a “fishing expedition.” Knox,
570 F.3d at 719.
The district judge did not abuse his discretion in denying Mosley’s two requests.
Mosley never explained how an investigator could help his case other than to relieve
counsel of the task of interviewing potential witnesses. All but a few of the twelve people he
had identified had no conceivable link to a plausible defense. Among them were the
intended extortion victim and her mother, as well as three persons who possessed the video
Nos. 06‐1478, 06‐2740 & 08‐3054 Page 4
tape prior to Mosley’s arrest; Mosley has yet to explain how sending an investigator to
interview those persons could have helped him convince the jury that his intentions were
misunderstood. This was an uncomplicated case, and Mosley supplied most of the evidence
with his e‐mail and recorded statements. Under the circumstances, there is no reason to
disturb the district court’s ruling.
Mosley’s second argument is that the district court should have suppressed an oral
statement that he made immediately afer his arrest. When FBI agents arrested Mosley at his
apartment, Special Agent Timothy Keese told Mosley that the charges related to a sex video
of Richards‐Sheffield and asked for consent to look for the tape. Mosley, who had not yet
received Miranda warnings, refused to give consent and added that he “already destroyed
the tape.” Later at the FBI office Mosley talked to Agent Keese at length, during an
interview that was preceded by Miranda warnings and was not challenged at trial.
Mosley argued that his comment to Special Agent Keese was a response to a pre‐
Miranda, custodial interrogation, but the district court rejected that contention. We agree
with that conclusion; a request for consent to search does not constitute interrogation
because it is not likely to elicit an incriminating response. See, e.g., United States v.
Bustamante, 493 F.3d 879, 892 (7th Cir. 2007); United States v. McClellan, 165 F.3d 535, 544 (7th
Cir. 1999). Since there was no dispute about the underlying facts, there was also no need for
an evidentiary hearing before the court ruled on his motion. See United States v. Walker, 237
F.3d 845, 850 (7th Cir. 2002).
Mosley’s third argument for reversal rests on a statement made by the prosecutor
assigned to handle his detention hearing. In arguing that the strength of the government’s
case was a factor favoring detention, see 18 U.S.C. § 3142(g)(2), the prosecutor noted that
FBI agents were reviewing video tapes seized from Mosley’s home and that one of those
tapes appeared to be the video described by Mosley in his discussions with Williams. The
tapes mentioned by the prosecutor had surfaced when, three days before the detention
hearing, Mosley’s lawyer had notified the prosecutor and Agent Keese that—according to
Mosley—the video of Richards‐Sheffield and R. Kelly was still in Mosley’s apartment.
Counsel relayed Mosley’s offer to surrender the tape if he was released from jail, but agents
instead obtained a search warrant and seized several tapes from the apartment, including
two that appeared to depict women engaging in sexual activity with R. Kelly. At first the
agents believed that one of those women was Richards‐Sheffield, but later they confirmed
that it was not, and no video of her ever was found. But at the detention hearing defense
counsel, who days earlier had passed along Mosley’s own representation that Richards‐
Sheffield was depicted in one of the tapes, did not contradict the prosecutor when she
proffered that the tape at the heart of Mosley’s extortion attempt was apparently in the
Nos. 06‐1478, 06‐2740 & 08‐3054 Page 5
hands of the agents. Six months later, Mosley moved to dismiss the indictment on the
ground that the prosecutor had lied about possessing the tape in order to bolster the
government’s case for detention. The district court called that contention frivolous and
observed that the prosecutor’s statement was qualified and, as far as the record showed,
was based on what was then known to her and the agents.
Dismissal of a criminal case is not the remedy for prosecutorial misconduct that does
not prejudice the defendant, see United States v. Childs, 447 F.3d 541, 545 (7th Cir. 2006), and
since Mosley’s complaint concerns only a proffer made at a pretrial detention hearing, the
jury’s guilty verdicts would have erased any harm flowing from unwarranted pretrial
custody, see Murphy v. Hunt, 455 U.S. 478, 881‐82 (1982). We are also puzzled by the
premise that the prosecutor could have overstated the strength of the government’s
evidence by proffering that a sex tape apparently existed, when the prosecutor’s
information originated with Mosely through his lawyer. But all of these are tangential
points because, as the district court recognized, Mosley had no factual basis for this serious
accusation of misconduct.
In his motion Mosley did not deny that agents had found a number of video tapes in
his apartment, nor did he say that he had watched or even inquired about those tapes before
accusing the prosecutor of lying. At least two of the tapes the agents were reviewing did
depict sexual activity, and at first the agents believed that Richards‐Sheffield was in one of
those videos. That conclusion squared with what Agent Keese and the prosecutor had been
told by defense counsel, and even Mosley had admitted to Williams during a recorded
conversation that he, too, initially misidentified a woman with R. Kelly in one of the sex
videos as Richards‐Sheffield. The most that one can glean from the record is that both the
prosecutor and defense counsel thought at the time of the detention hearing that a tape of
Richards‐Sheffield and R. Kelly was in the government’s possession. Mosley’s later
accusation of misconduct was unfounded.
Mosley’s final challenge to his convictions under § 875(d) and § 1343 is even weaker
than the others. He argues that Judge Der‐Yeghiayan should have granted his pro se motion
for recusal, which the court labeled as frivolous but denied because it was not filed by
Mosley’s lawyer. That ruling was correct; a defendant who is represented by counsel does
not have the right to file his own pro se submissions. United States v. Williams, 495 F.3d 810,
813 (7th Cir. 2007); United States v. Gwiazdzinski, 141 F.3d 784, 787 (7th Cir. 1998). Moreover,
all of Mosley’s arguments for recusal rested on his belief that the judge’s pretrial rulings and
courtroom comments showed him to be in cahoots with the government, but Mosley did
not allege that anything the court said or did was in response to information derived from
an extrajudicial source. Thus, whether Mosley was asserting actual bias, see 28 U.S.C.
Nos. 06‐1478, 06‐2740 & 08‐3054 Page 6
§§ 144, 455(b)(1), or the appearance of bias, see id. § 455(a), his allegations did not present a
valid basis for disqualification. See Liteky v. United States, 510 U.S. 540, 553‐54 (1994)
(concluding that the extrajudicial source requirement also applies to § 455(a)).
We thus affirm the judgment in case no. 06‐1478, and turn to Mosley’s related
appeal, case no. 08‐3054. After Mosley was released from prison, his probation officer
sought to implement the special condition of supervised release requiring Mosley to submit
to a mental‐health evaluation. In June 2008, Mosley filed a pro se motion asking the court to
stay enforcement of that condition pending the resolution of his direct appeal. Mosley
characterized the required evaluation as just more evidence of bias, and when the judge
refused to stay its implementation, Mosley filed a notice of appeal. His only contention,
however, is that the condition should have been stayed until we decided his direct appeal,
and he makes no argument that it was error to order the mental‐health evaluation as a
special condition of supervised release. The parties do not say whether the evaluation went
forward after Mosley’s request for a stay was denied, but our resolution of his direct appeal
has rendered moot the question about delaying its enforcement.
Mosley’s remaining appeal, case no. 06‐2740, concerns Judge Shadur’s revocation of
his supervised release from his 1999 conviction for bank fraud, see 18 U.S.C. § 1344. Mosley
had been sentenced to twelve months and one day in prison, along with five years of
supervised release. He contends only that the district court overstated his criminal history
category—from III to IV—when calculating the advisory guidelines range for
reimprisonment. Mosley did not make this argument at the revocation hearing. The
government concedes the mistake, which increased the upper end of the advisory range
from 14 to 18 months, but argues that Mosley has not established plain error.
When revoking a term of supervised release, the district court looks to U.S.S.G.
§ 7B1.4(a) in calculating the range for reimprisonment. That policy statement makes clear
that the criminal history category from the original sentencing is to be used again.
See id. § 7B1.4(a) cmt. n.1. Mosley had a criminal history category of III when he was
sentenced in 1999, and thus it was error to use a higher category to calculate his range of
reimprisonment. Because we are reviewing only for plain error, however, it is Mosley who
bears the burden of demonstrating an error that is plain, that affects his substantial rights,
and that, if left uncorrected, seriously affects the “fairness, integrity, or public reputation of
judicial proceedings.” United States v. Olano, 507 U.S. 725, 732‐36 (1993). The error here is
plain, and it arguably affected Mosley’s substantial rights because the transcript of the
revocation hearing suggests that Judge Shadur was inclined to impose a term of
reimprisonment in the middle of the policy‐statement range, which, if correctly calculated,
would have been 8 to 14 months.
Nos. 06‐1478, 06‐2740 & 08‐3054 Page 7
Nevertheless, this is an error that has no practical consequences for Mosley. Even if
we were to remand the case, no change in Judge Shadur’s revocation sentence could
provide Mosley with any meaningful relief. Mosley’s term of reimprisonment cannot be
shortened because he has already served his time, and any extra time he arguably spent in
prison cannot be credited towards his supervision. United States v. Johnson, 529 U.S. 52, 58‐59
(2000). Although Judge Shadur could decide to shorten the two‐year term of supervised
release to compensate for the error, Mosley will still be serving the longer, concurrent term
of supervised release imposed by Judge Der‐Yeghiayan for his new convictions and thus his
overall time on supervision will not change. The fourth prong of the plain error test is thus
not satisfied – the integrity of the judicial system is not compromised by an error that
cannot be remedied, particularly when a remedy would have been available if Mosley had
raised a timely objection to the miscalculation in the district court.
The judgments in case nos. 06‐1478 and 06‐2740 are AFFIRMED. Case no. 08‐3054 is
DISMISSED.