Argued April 27, 2015.
As Corrected June 17, 2015.
Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 10 CR 50078-3 -- Frederick J. Kapala, Judge.
For United States of America, Plaintiff - Appellee: Talia Bucci, Assistant U.S. Attorney, Office of The United States Attorney, Rockford, IL.
For Robert Presley, also known as: MUNCHIE, Defendant - Appellant: Mark A. Byrd, Attorney, Byrd & Taylor, Rockford, IL.
Before POSNER, WILLIAMS, and TINDER, Circuit Judges.
Posner, Circuit Judge.
Robert Presley, the defendant in a trial lasting eight days, was convicted by a jury of heroin and related gun offenses and also of being a felon in possession of a gun. See 18 U.S.C. § § 922(g)(1), 924(c)(1)(A)(i); 21 U.S.C. § 846. We affirmed the convictions and sentences of two of his codefendants in United States v. Cooper, 767 F.3d 721 (7th Cir. 2014), an opinion that contains a full description of the crimes of the defendants, including Presley. The judge sentenced him to 440 months (36.67 years) in prison and imposed 17 conditions of supervised release. The appeal challenges the conviction and the prison sentence.
The principal challenge to the conviction concerns a fourth codefendant, Norman Breedlove, who testified against Presley pursuant to a plea agreement. Shortly after the trial, Presley, who was housed in a cell near Breedlove's cell, moved for a new trial on the ground that he had overheard Breedlove saying things that suggested that his testimony had been " false and perjurious." Shortly before Presley filed his motion, the district judge at the request of Breedlove's lawyer had ordered Breedlove examined to determine his mental competency. On the basis of the results of the examination the judge ruled that Breedlove was suffering " from a mental disease or defect rendering him ... unable to understand the nature and consequences of the proceedings against him or assist properly in his defense." The judge ordered him committed for " a reasonable period of time ... to determine whether there is a substantial probability that in the foreseeable future" he would " attain the capacity to permit the proceedings [against him, pursuant to his plea agreement] to go forward."
A guard at the jail in which Breedlove was held submitted an affidavit stating that Breedlove had admitted to the guard that he had testified falsely against Presley--explaining that he had made a plea deal with the government (requiring him to testify against Presley) because one of his heroin customers had died of an overdose and he was afraid of being charged with murder if he didn't do whatever the government wanted him to do. Presley argued that he was entitled to a new trial because Breedlove had either given perjured testimony or had not been competent to testify.
The judge denied Presley's motion for a new trial. He said that it was unclear whether Breedlove had been mentally incompetent at the time of the trial and whether if so this would have made him incapable of testifying truthfully, and that in any event any error in allowing Breedlove to testify had to have been harmless because of the overwhelming other evidence of Presley's guilt, evidence recounted in our previous opinion. The judge's
rulings on the Breedlove matter ...