In the
United States Court of Appeals
For the Seventh Circuit
No. 08-4021
UN ITED STA TES O F AM ERICA ,
Plaintiff-Appellee,
v.
K EVIN M. C OOPER,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:08 CR 30066-001-GPM—G. Patrick Murphy, Judge.
A RGUED S EPTEMBER 11, 2009—D ECIDED JANUARY 11, 2010
Before E ASTERBROOK, Chief Judge, and P OSNER and W OOD ,
Circuit Judges.
W OOD , Circuit Judge. Kevin Cooper was a heroin dealer
who operated out of the Centralia area in southern Illinois.
Eventually the police caught up with him, and he was
charged and convicted of conspiring to distribute and
possess with intent to distribute more than 100 grams of
heroin, in violation of 21 U.S.C. § 846. On appeal, he
challenges both his conviction and his sentence. He asserts
that he is entitled to a new trial because of the way that the
district court handled his request for self-representation,
2 No. 08-4021
the fact that he was shackled throughout the trial, and the
court’s failure to exclude certain inflammatory evidence.
Even if the conviction stands, he argues, his life sentence
was unreasonable, because the court placed too much
weight on various deaths that were attributable to his
heroin sales. Although we are inclined to agree with
Cooper that some errors were made, we are satisfied that
they were harmless. We therefore affirm.
I
The Centralia police first learned about Cooper and his
drug trafficking activities in late 2005. Two years later,
police officials caught a lucky break when they arrested
Brandon Shelton, a heroin addict, for shoplifting. Shelton
volunteered to help the police by purchasing drugs from
Cooper. They gave him $600 in prerecorded currency and
monitored him while he went to a trailer that Cooper used.
Shelton entered and emerged 10 minutes later with
1.7 grams of heroin. Shelton promptly turned the heroin
over to the police officers in charge. Other officers then
entered the trailer, where they found Cooper and two
other people. They searched the trailer and found drug
paraphernalia and a small amount of heroin. A search
of Cooper turned up the prerecorded cash that Shelton
had used. The police then arrested Cooper, and in
April 2008 he was indicted on the federal charges men-
tioned earlier.
Initially, Cooper proceeded with an appointed lawyer,
Rodney Holmes. Apparently he was unhappy with
Holmes, and so at a pretrial hearing held on June 18, 2008,
he asked the court to dismiss Holmes and to permit him
No. 08-4021 3
to proceed pro se. Although the court did not explore
Cooper’s reasons for his dissatisfaction with Holmes, it did
ask him a series of questions relating to his request for self-
representation. Included among those questions were
inquiries about his understanding of the charges against
him, his knowledge of possible penalties, any experience
he had with self-representation, his education, and his
knowledge of trial procedures. The court specifically
mentioned the Federal Rules of Evidence and warned
Cooper that it would not make exceptions on his behalf.
It also told Cooper that it would furnish standby counsel
to help him with legal questions. Finally, it cautioned
Cooper about the risks of representing himself. Cooper,
who noted that he had successfully represented himself
in state court in a trial involving charges for attempted
murder and aggravated battery, assured the court that
he understood all of this and wanted to proceed on his
own. The court never mentioned to Cooper that his legs
might be shackled.
Although the record does not reflect why, Cooper’s legs
were shackled throughout the three-day trial. In order to
conceal this fact from the jury, Cooper sat at a skirted table.
He stood only when the jury entered and left the court-
room. Otherwise, to ensure that the jury did not see the
shackles, he avoided moving around while questioning
witnesses. He was unable to approach the bench when
handling exhibits, and he gave his opening and closing
arguments from a seated position.
At the trial, the government introduced a number of
witnesses who testified that they had purchased heroin
from Cooper, or that they had sold heroin to him, or that
4 No. 08-4021
they had seen him selling to others. In general, it was the
testimony from these witnesses that established Cooper as
someone who had dealt in at least 100 grams of heroin,
not just the 1.7 grams that Shelton had bought. These
witnesses were themselves heavily involved in drugs,
and many testified in the hope of securing lenience for
themselves. The prosecutor also put the officers who were
involved with Cooper’s arrest on the stand. A forensic
expert identified the substance that Shelton had
purchased and the additional material found within the
trailer as heroin. Finally, some cell phone records were
introduced into evidence.
Some of the evidence was highly prejudicial to Cooper.
Before trial, fearing that the government might bring
up the fact that some of his buyers had died from heroin
overdoses, Cooper moved to exclude autopsy reports
of those deaths. The court agreed to do so, but at trial,
it permitted the government to make a number of refer-
ences to the deaths. Cooper objected repeatedly; at one
point, referring to two of the fatalities (the Marler broth-
ers), Cooper said ” . . . from the autopsy report I read,
there’s six different types of drugs in the Marler brothers.
Any one of them could have killed them. And as far as
all this stuff, the government trying to do now, it’s more
prejudicial than probative.” (Emphasis added). This was as
clear an objection based on FED. R. E VID. 403 as we nor-
mally see from a lawyer, and it was more than enough to
preserve this point for appellate review.
The government managed to introduce evidence that not
only the Marler brothers, but also Larry Burton, Brian
Goodspeed, Newt Castellari, and Jessica Alsept had all
No. 08-4021 5
died from heroin that Cooper sold to them. The court
permitted another witness—someone who had been
convicted of a drug-induced homicide—to testify about the
fact that death could result from an overdose. When
Cooper again objected, the government justified the
inquiry by saying that it helped to show that he was
distributing heroin and also that it showed the effect
of that heroin. The court expressed concern about the
relevance of the “effects” evidence and offered to give
a limiting instruction. In the end, it did not follow up
on that offer. Throughout these discussions the court
was focusing only on the relevance of the evidence. It never
addressed Cooper’s objection based on prejudicial impact.
Indeed, later the court permitted two witnesses to testify
about Cooper’s lack of remorse over the deaths. One
witness recounted that Cooper said that he would have
left one person’s “body in a ditch.”
Cooper called only two witnesses in his defense. The first
was Allen Falls, who testified that he had performed
landscape work with Cooper between April and August
of 2007. Apparently Cooper was hoping to use Falls as
an alibi witness, but if that was what he was doing, the
effort was a flop. On cross-examination, Falls admitted that
he had never been in Centralia with Cooper. The other
witness was Amanda Dodillet, who had been with Cooper
on the day of his arrest. On direct examination by Cooper,
obviously under oath, Dodillet testified that Cooper had
not sold heroin to her. She changed her story on cross-
examination, however, and admitted that Cooper had
given heroin to her as many as 40 to 50 times. The court
eventually concluded that Cooper had pressured her to lie
on direct.
6 No. 08-4021
After the jury convicted Cooper, the court ordered the
preparation of a Presentence Investigation Report (“PSR”).
The PSR assigned him a base offense level of 30, relying
on evidence that he had handled between 700 grams
and one kilogram of heroin. See U.S.S.G. § 2D1.1(c)(5).
Four levels were added for his role in the offense, and
then two more for obstruction of justice, bringing the
total offense level up to 36. But the PSR writer concluded
that Cooper was a career offender, see U.S.S.G. § 4B1.1(b),
and so that was the guideline that dictated his final offense
level (37) and his criminal history (VI). This produced a
recommended guidelines range of 360 months to life.
At the sentencing hearing, the court heard victim-impact
evidence from family members of those who had died from
the overdoses. The government requested a life sentence,
emphasizing the high cost of Cooper’s criminal activity.
The court properly noted that the guidelines are advisory
and that it had discretion to impose a sentence as low as 10
years, but it then left no doubt about the way in which it
wanted to exercise its discretion, saying “if there were
no guidelines and if I have unfettered discretion, I would
give you life.” It justified that decision on several grounds.
First, it noted that “in the teeth of all of this evidence
[Cooper] still refuses to acknowledge what is eminently
clear to any objective observer and that is that he just
is guilty.” It then acknowledged that a sentence should be
no more than is necessary to accomplish the objectives of
sentencing, but it found “the nature and the circumstances
of this crime . . . startling.” The court also found that
Cooper (who was by then in his mid-50s) was incorrigible,
and that anything less than a life sentence might make
No. 08-4021 7
him think that he could get away with something. Putting
that point in terms of 18 U.S.C. § 3553(a), the court was
essentially saying that a life sentence was necessary to
reflect the seriousness of Cooper’s offense, to provide
adequate deterrence, and to protect the public from him
in the future. On that basis, the court imposed a life
sentence, and Cooper filed an immediate notice of appeal.
II
A
Cooper has offered three reasons why, in his view, we
should vacate his conviction and order a new trial: first, he
contends that the district court failed to warn him
properly about the dangers of self-representation; second,
he argues that the court denied him a fair trial when
it allowed him to be shackled during the entire proceeding
(especially because, at the same time, he was trying to
represent himself); and third, he urges that the trial was
irreparably tainted by the court’s admission of the evi-
dence of the five fatal overdoses. We address these in turn.
1. Self-representation. Although the Sixth Amendment
guarantees criminal defendants a right to counsel, it has
been established at least since the Supreme Court’s deci-
sion in Faretta v. California, 422 U.S. 806 (1975), that “the
right to self-representation—to make one’s own defense
personally—is thus necessarily implied by the structure
of the Amendment.” Id. at 819; cf. Martinez v. Court of
Appeal of Cal., Fourth App. Dist., 528 U.S. 152 (2000)
(holding that the Faretta right extends only to the trial
8 No. 08-4021
phase, and does not include a right to self-representation
on a direct criminal appeal). A defendant’s decision to
waive her Sixth Amendment right to counsel is valid,
however, only if the waiver is knowing and intelligent.
Faretta, 422 U.S. at 835; Smith v. Grams, 565 F.3d 1037, 1044
(7th Cir. 2009).
Although district judges are not required to expound
at length on the disadvantages of self-representation,
nor are they required to give a hypothetical lecture on
criminal law, see United States v. Moya-Gomez, 860 F.2d 706,
732 (7th Cir. 1988), they do need to take reasonable steps
to ensure that a defendant’s decision to proceed without
counsel is knowing and informed. When someone like
Cooper argues, in effect, that the district court did not
do enough to save him from himself, we evaluate that
contention with the help of a number of useful inquiries.
They include (but are not necessarily limited to) the
following: “(1) whether and to what extent the district
court conducted a formal hearing into the defendant’s
decision to represent himself; (2) other evidence in
the record that establishes whether the defendant under-
stood the dangers and disadvantages of
self-representation; (3) the background and experience of
the defendant; and (4) the context of the defendant’s
decision to waive his right to counsel.” United States v.
Todd, 424 F.3d 525, 530 (7th Cir. 2005) (quoting United States
v. Avery, 208 F.3d 597, 601 (7th Cir. 2000)). We review the
district court’s decision for abuse of discretion. Todd, 424
F.3d at 530.
In this case, most of those points were brought out in
the district court’s discussion with Cooper when Cooper
No. 08-4021 9
asked to dismiss his lawyer. As we have noted, the court
gave Cooper a sense of what he needed to know; it
elicited from Cooper the fact that he had experience with
self-representation; it warned Cooper of the risks of
proceeding without counsel; and it was able to see for itself
that Cooper was firmly committed to that method of
proceeding. The court was under no obligation in this
connection to tell Cooper that he might be shackled, and
that shackling would impede his ability to walk around
while he conducted the trial. We conclude, therefore, that
the court did not abuse its discretion when it permitted
Cooper to represent himself, and that Cooper must be held
to the choice he made.
2. Shackling. The decision whether to shackle a defendant
is one that a court must make on grounds that have
nothing to do with his right to self-representation. On the
one hand, a criminal defendant has the right to a presump-
tion of innocence. See Estelle v. Williams, 425 U.S. 501
(1976); Illinois v. Allen, 397 U.S. 337 (1970); see also United
States v. Van Sach, 458 F.3d 694, 699 (7th Cir. 2006). The
defendant thus has the right to appear before the jury
free from restraints or garb that imply that he is a danger-
ous or guilty person. Allen, 397 U.S. at 344; Roche v. Davis,
291 F.3d 473, 483 (7th Cir. 2002). On the other hand, the
Supreme Court has held that “[t]he law has long
forbidden routine use of visible shackles during the guilt
phase; it permits a State to shackle a criminal defendant
only in the presence of a special need.” Deck v. Missouri,
544 U.S. 622, 626 (2005). The right to be free from visible
shackles, however, “may be overcome in a particular
instance by essential state interests such as physical
10 No. 08-4021
security, escape prevention, or courtroom decorum.” Id. at
628.
Cooper’s biggest problem with respect to this argument
is that he failed to raise it before the district court. Both
parties assume that this was a forfeiture, rather than
a waiver, and thus that we may review the point for
plain error. United States v. Luepke, 495 F.3d 443, 448 (7th
Cir. 2007). Although the Supreme Court follows a different
rule for cases in which a defendant fails to object to prison
garb, see Estelle v. Williams, 425 U.S. 501, 512-13 (1976)
(holding that “the failure to make an objection to the court
as to being tried in such clothes . . . is sufficient to negate
the presence of compulsion necessary to establish a
constitutional violation”), the overall tenor of Deck (a case
in which counsel did object to shackling) suggests that
shackling is a much more serious step than the use
of prison garb. The Court saw nothing even potentially
benign in shackles, nor did it suggest that a jury might feel
sympathy rather than fear or aversion for a shackled
defendant.
In any event, the government made no effort to equate
shackling to prison garb in this case, and so we proceed
with plain-error review. The Supreme Court’s most recent
statement of the plain error standard appears in Puckett v.
United States, 129 S.Ct. 1423 (2009):
. . . [Federal] Rule [of Criminal Procedure] 52(b) re-
view—so-called “plain-error review”— involves four
steps, or prongs. First, there must be an error or
defect—some sort of deviation from a legal rule—that
has not been intentionally relinquished or abandoned,
No. 08-4021 11
i.e., affirmatively waived, by the appellant. Second, the
legal error must be clear or obvious, rather than subject
to reasonable dispute. Third, the error must have
affected the appellant’s substantial rights, which in
the ordinary case means he must demonstrate that it
affected the outcome of the district court proceedings.
Fourth and finally, if the above three prongs are
satisfied, the court of appeals has the discretion to
remedy the error—discretion which ought to be
exercised only if the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.
Meeting all four prongs is difficult, as it should be.
129 S.Ct. at 1429 (internal citations and quotation marks
omitted).
Here, even if we assume that the district court erred
when it failed to make any findings about the need to place
Cooper in shackles, we see nothing in the record that
would establish either that the shackling was a clear
or obvious violation of his rights or that it affected the
outcome of the proceedings. Critically, these were not
visible shackles. The record indicates instead that the jury
could not see the shackles, because Cooper was sitting at
a skirted table, rendering his ankles invisible. The govern-
ment’s table was similarly skirted, and so the jury would
have had no reason to draw any adverse inference from
the appearance of the defense table. Cooper’s standby
lawyer was sitting right next to him, and so the shackling
did not impede his access to legal advice. Cooper
now complains that he could not move around the court-
room, but he never asked for permission to do so, and
12 No. 08-4021
so there is no way to know how the district court might
have accommodated any such request. Although it is
regrettable that the court did not explain the shackling
decision, we find no plain error.
3. Evidence of Fatal Overdoses. By far the most serious
argument that Cooper raises is that the district court
abused its discretion when it failed to subject the govern-
ment’s evidence showing that a number of Cooper’s
customers died after using heroin that they had
purchased from him to analysis under F ED. R. E VID. 403.
The fault was not Cooper’s; the excerpt we have
included above shows that Cooper properly objected to
this evidence, not because it failed the relevance standard
of FED. R. E VID. 401, but because, even if relevant, it was
subject to exclusion under Rule 403 because “its probative
value [was] substantially outweighed by the danger
of unfair prejudice . . . .” When the court overruled Coo-
per’s objections, however, it repeatedly said only that
the evidence was relevant; as far as we can tell it never
considered whether it was nonetheless so prejudicial that
it should be limited or excluded entirely. The government
argued that the evidence was admissible to show that
Cooper had indeed distributed heroin to those
who overdosed. The court’s ruling suggests that it
accepted this reason: “Yes, if that is the testimony [that
the heroin used by certain overdose victims came from
Cooper], of course it would be relevant for that purpose
[i.e. to show that Cooper was distributing].” Later, how-
ever, the court went further, and ruled that “[t]he defen-
dant’s statements and his reactions to the death of someone
which connects him with the heroin is relevant also.”
Although the court offered at several points to give
No. 08-4021 13
a limiting instruction, Cooper did not follow up on that
invitation, and so no such instruction was ever given.
Even taking into account the fact that our review of
evidentiary rulings is for abuse of discretion, we cannot
escape the conclusion that the court erred by allowing
the government to explore this line of inquiry. As we have
already noted, the court also erred by failing altogether
to conduct a Rule 403 analysis, which was part of the
process that it had no discretion to omit. Evidence of what
happened to Cooper’s customers after they bought heroin
from him had nothing to do with the charges in this case.
The government relies on United States v. Birbal, 62 F.3d 456
(2d Cir. 1995), to support the court’s ruling, but that case is
weak authority at best for its position. In Birbal, the
district court had permitted the prosecutor to elicit evi-
dence showing that one of Birbal’s customers, Buckley, had
died of a heroin overdose soon after purchasing the drug.
Id. at 463. The court found that this evidence was “inexora-
bly intertwined” with the question whether Birbal and his
partner had distributed the narcotics, 62 F.3d at 463, and
thus that it had no need to consider Rule 403. The Second
Circuit concluded that the latter point was wrong: Rule 403
applies to all evidence, no matter how closely related to the
criminal activity it may be. Id. at 464. Nevertheless, the
court thought, the probative value of the evidence out-
weighed its obvious prejudicial effect. Id. The evidence
provided strong circumstantial proof that it was
heroin that Birbal had given to Buckley, since it was shortly
after Birbal left Buckley’s house that Buckley began to
exhibit symptoms of heroin poisoning. Id. Moreover, the
court concluded that Birbal had not made a specific
14 No. 08-4021
enough objection to the evidence in question. Id. at 464-65.
All told, both the facts and legal posture of Birbal are
sufficiently distinct from Cooper’s case that there is
ample room for different outcomes.
The fact that there was an error in the admission of
evidence, however, is not the end of the matter. Eviden-
tiary errors are subject to harmless error analysis under
F ED. R. C RIM. P. 52(a). Neder v. United States, 527 U.S. 1, 7
(1999). Rule 52(a) states that “[a]ny error, defect, irregular-
ity, or variance that does not affect substantial rights must
be disregarded.” When we have considered evidentiary
questions like the one before us, we have held that
“[t]he test for harmless error is whether, in the mind of
the average juror, the prosecution’s case would have
been significantly less persuasive had the improper
evidence been excluded.” United States v. Emerson, 501 F.3d
804, 813 (7th Cir. 2007) (quoting United States v. Owens, 424
F.3d 649, 656 (7th Cir. 2005) and United States v. Eskridge,
164 F.3d 1042, 1044 (7th Cir. 1998)) (internal quotation
marks omitted). Cooper stood charged with one count of
conspiracy to distribute and possess with intent to distrib-
ute more than 100 grams of heroin. The jury heard witness
after witness testify that they had bought heroin from, or
sold heroin to, Cooper. The government’s informant,
Shelton, conducted one monitored purchase. Cooper’s
companion, Dodillet, eventually admitted that she had
obtained heroin from him 40 to 50 times. Even though the
jury was probably repulsed by the evidence of
Cooper’s callousness about the consequences of his sales,
the evidence supporting the charge in the case was over-
whelming. We cannot imagine that any juror would have
No. 08-4021 15
found the government’s case less persuasive if all of
that evidence had been excluded.
We therefore hold that the district court’s error was
harmless. That said, we must note that it is regrettable that
the government tried to use this explosive evidence at
the guilt stage in the first place. There is no question that
it would have been admissible during the sentencing
proceeding, since it throws light on the nature and circum-
stances of Cooper’s offense, and his history and character-
istics. See 18 U.S.C. § 3553(a)(1). Had the evidence of the
underlying offense been weaker, the government would
have imperiled its prosecution for no good reason.
B
We can be brief with Cooper’s challenge to his life
sentence. In keeping with the Supreme Court’s instruction
in Gall v. United States, 552 U.S. 38 (2007), and Rita v. United
States, 551 U.S. 338 (2007), we first examine whether the
district court correctly calculated the defendant’s advisory
guideline range. Next, we ensure that the court otherwise
followed proper procedures, in particular by giving the
defendant an opportunity to raise whatever points under
18 U.S.C. § 3553(a) that he thought pertinent. We also
consider whether the district court gave enough of an
explanation of its ultimate choice of sentence to permit
meaningful appellate review. In short, we evaluate the
procedural soundness of the sentencing decision. If all
is well procedurally speaking, we then ask whether the
sentence chosen by the district court is substantively
reasonable. At the appellate level, we are entitled to give a
16 No. 08-4021
presumption of reasonableness to a sentence that falls
within a properly calculated guideline range. Rita, 551 U.S.
at 350-51.
Although Cooper complains that the district court took
into account overdoses that occurred as far back as 1999,
he does not suggest that the judge was forbidden by any
law to do so. Nor is there any such prohibition. The rules
of evidence do not apply during sentencing proceedings;
the only requirement is that the evidence supporting
the sentence must be reliable. United States v. Statham, 581
F.3d 548, 553 (7th Cir. 2009). Cooper also suggests that
the district court allowed its irritation with Cooper’s self-
representation to influence the sentence—at one point the
judge told Cooper “you are going to die in prison”—and
that this was impermissible. But this argument overlooks
the judge’s explanation for his decision to sentence
Cooper at the top of the properly calculated guideline
range, which was life. The court was not required to
flatter Cooper; instead, it had every right to tell Cooper
(even bluntly) that he was getting a life sentence because
the judge found that this was what his many years of
crime had earned him.
Cooper has raised other arguments against his sentence,
but none of them is enough to show that the sentence was
substantively unreasonable.
* * *
We A FFIRM the judgment of the district court in all
respects.
1-11-10