In the
United States Court of Appeals
For the Seventh Circuit

No. 99-1919

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ERIC R. MEYER,

Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Wisconsin.
No. 96 CR 10--John C. Shabaz, Chief Judge.

ARGUED NOVEMBER 12, 1999--DECIDED DECEMBER 4, 2000



  Before FLAUM, Chief Judge, and RIPPLE and
ROVNER, Circuit Judges.

  ROVNER, Circuit Judge. Two years ago,
this court reversed Eric Meyer’s
conviction for conspiracy to distribute a
controlled substance and granted him a
new trial based on an instructional
error. United States v. Meyer, 157 F.3d
1067 (7th Cir. 1998), cert. denied, 526
U.S. 1070, 119 S. Ct. 1465 (1999). A
second jury convicted him again on the
conspiracy charge. In this appeal, Meyer
argues that his trial counsel was
ineffective for failing to ask for a
mistrial, or in the alternative, a
cautionary instruction, after a witness
alluded to "murder cases," that the
evidence was insufficient to support the
district court’s sentencing determination
that he committed a murder in the course
of the drug conspiracy, and that the
court violated his due process rights
when it cross-referenced the murder
guideline. We affirm.

I.

  We assume familiarity with our opinion
in the previous appeal and confine our
discussion of the facts to those most
pertinent to the issues Meyer has raised.
From 1991 until 1995, Meyer participated
in a narcotics distribution conspiracy
whose members included his co-defendant,
Gordon Hoff, Sr. ("Hoff") and Hoff’s son,
Gordon Hoff, Jr., known to his associates
as "Rock." At the outset of the
conspiracy, Hoff supplied both Rock and
Meyer with cocaine (and marijuana) for
resale to others. Rock developed his own
sources of cocaine, however, and at times
was able to buy it at prices lower than
his father offered him. Indeed, on
occasion Rock supplied Hoff with cocaine
rather than the other way around.
Eventually, in or around August of 1993,
Hoff ceded Meyer as a customer to Rock in
exchange for a Harley-Davidson motorcycle
that Rock had taken from a friend in an
insurance scam. Thereafter, Meyer
obtained his narcotics on an almost daily
basis from Rock (often on credit). On
occasion, he lent a hand when Rock, Hoff,
or one of their associates needed
assistance with transporting cocaine,
collecting drug debts, and like tasks.

   Dennis Fenner, Hoff’s source for
marijuana, was one of several people who
were murdered in the course of the
conspiracy. In the immediate wake of his
indictment late in 1995, Hoff, who was
cooperating with the authorities in
exchange for immunity, said that he
suspected Rock of the murder. But
investigators later concluded that Meyer
had killed Fenner, at Hoff’s behest.

  At a pre-trial evidentiary hearing in
1996, Rock indicated that in 1994, Hoff
(who had recently had a search warrant
executed on his property) wanted Fenner
killed for fear that he might expose Hoff
and his co-conspirators to the police.
Rock testified that Hoff arranged a
meeting with Fenner at Rock’s farm near
Osseo, Wisconsin in the middle of one
night in late April 1994, and Hoff asked
Rock to drive Meyer to that meeting. Rock
did so, and he noticed that Meyer had a
nine-millimeter Smith & Wesson handgun
with him that had once belonged to Rock.
Rock and Meyer arrived at the farm first.
After giving Meyer a brief tour of an
abandoned house on the property, the two
men returned outdoors. Rock walked around
to the back of the house to relieve
himself. While he was so engaged, Rock
heard an automobile come up the drive
toward the house; he then heard two car
doors slam shut, and a moment later he
heard several gunshots. When he walked
out from behind the house, Rock saw
Fenner’s body on the ground. Meyer was
standing approximately five feet away
with a gun in his hand and Hoff, who was
standing next to Meyer, was
congratulating Meyer, saying that "it had
to be done." R. 116 at 42. Rock testified
that he helped the other two men burn
Fenner’s body over a period of six hours
and dispose of some of the ashes in a
creek. The three of them then left
together in Rock’s 1976 Chevrolet Blazer.
Hoff later killed Fenner’s dog in order
to avert suspicion that Fenner had been
the victim of foul play. R. 116 at 45, R.
195 at 39.

  At Meyer’s first sentencing hearing in
December 1996, Rock again testified on
the subject of Fenner’s murder. At that
time he added that Hoff had given Meyer a
motorcycle because Meyer had killed
Fenner. R. 195 at 38, 42.

  Rock was by no means a witness of
unimpeachable virtue. Aside from having
helped Hoff and Meyer (at the least) to
dispose of Fenner’s body, Rock admitted
that he had killed another individual,
Kirk Larson, and that he was serving a
twenty-year prison term for that murder.
R. 195 at 65./1 Rock told the
authorities that he killed Larson because
Larson had an affair with Carole Tenney.
R. 116 at 52-53. (At the time of the
Larson murder Tenney was Rock’s
girlfriend; by the time that the pre-
trial evidentiary hearing took place, she
was Rock’s wife.) Rock acknowledged,
however, that his father claimed Rock had
killed Larson because he was concerned
that Larson might expose his drug-dealing
(R. 116 at 51; id. at 71); and Rock
agreed that he would have received a more
severe sentence for the murder if his
father’s version were accurate (R. 116 at
53). Tenney, in fact, denied having had
an affair with Larson. R. 116 at 93.
Rock also acknowledged that his father
had turned him in for murder and drug-
dealing, and that he did not begin to
cooperate with the authorities until Hoff
and Meyer had already implicated him in
the drug conspiracy. R. 315 at 70-71.
Moreover, after Rock pleaded guilty to
the federal conspiracy charge, he
received a sentence of only ten years, as
compared to the life terms that Hoff and
Meyer eventually received. Rock also
admitted that he owned and had "paged
through" books that described how to kill
someone silently, how to dispose of
bodies, and how to be a hit man. R. 315
at 77. He admitted that he did not like
Fenner. "He was a prick," Rock testified.
R. 195 at 66. He admitted as well that he
owned a nine-millimeter handgun and that
he had threatened to kill another
individual with that gun at the Osseo
farm, where of course Fenner was slain.
R. 195 at 67-68. Indeed, Rock admitted
that after he killed Kirk Larson, he
killed Larson’s dog--just as Hoff,
according to Rock, had killed Fenner’s
dog after Meyer killed Fenner. R. 195 at
66. Two prisoners who testified on
Meyer’s behalf at his first sentencing
hearing reported that Rock had claimed
responsibility for multiple murders
(although not specifically Fenner’s). R.
195 at 228-29, 240, 242-43. Judge Crabb
described Rock as "a seriously disturbed,
violent young man[.]" R. 198 at 187. For
his part, Rock’s father (Hoff) testified
that Rock’s account of the Fenner killing
was a "total lie". R. 198 at 25.

  Carole Tenney Hoff ("Tenney") also
testified at the August 1996 evidentiary
hearing, and again at Meyer’s first and
second sentencing hearings. She was not
yet married to Rock in April of 1994, but
she was living with him. She recalled
hearing Hoff tell his son, several days
before Fenner disappeared, that Fenner
had been talking to the police and could
not be trusted. Tenney also recalled that
Hoff and Meyer had visited their home on
the night before Fenner’s disappearance.
Although she was in another room of the
house, Tenney said that given the volume
with which Hoff and Meyer were speaking,
she was able to hear bits and pieces of
the conversation that they had with Rock
that night: "they were just kind of
raving." R. 116 at 88. In particular, she
claims to have heard Hoff and Meyer say
that "they weren’t going to have to worry
about [Fenner] anymore, and he wasn’t
going to be talking to anybody." R. 116
at 88. On the following morning, Tenney
awoke to find Rock gone from the house.
Later that same morning, as she was
driving to a class in Eau Claire, she saw
Hoff, Rock, and Meyer together in the
Blazer. Either that same day or several
days later (Tenney wasn’t sure which),
she asked Rock whether Meyer had shot
Fenner. Rock look surprised and
purportedly replied, "I don’t know. I
don’t know what you’re talking about." R.
116 at 89.
  Tenney’s testimony had its vulnerable
points as well. First, although Tenney
attributed to Hoff and/or Meyer the
remark that they wouldn’t have to worry
about Fenner much longer (R. 116 at 87-
88), she admitted on cross-examination
that it could have been Rock who made
that remark (R. 116 at 99). Second,
although Tenney claimed to have seen
Hoff, Rock, and Meyer together in Rock’s
Blazer on the morning of Fenner’s
disappearance, she placed them on a
different highway, seated somewhat
differently in the Blazer, than Rock did
in his own testimony. Compare R. 116 at
80-81 (Rock), with id. at 102-03, 107-08,
and R. 318 at 41-43 (Tenney). Third,
Tenney could offer no explanation for
having asked Rock whether Meyer had
killed Fenner. "I just said it. It was
really strange actually. I just said it.
. . . I really had no reason to think
that Eric would do anything like that. I
don’t even know where it came from." R.
116 at 108. Indeed, she acknowledged that
she had never seen Meyer with a gun,
although she had seen Rock with a nine-
millimeter handgun. R. 116 at 109.
Finally, Tenney admitted that she
previously had lied and withheld
information from the police in order to
protect herself and Rock (R. 116 at 92,
104); she also admitted that she had
falsely notarized a quitclaim deed for
Hoff in the wake of Fenner’s murder so
that Hoff could take possession of
Fenner’s property (R. 116 at 103-04,
105). FBI Agent Charles Southworth would
later confirm that Tenney had "lied on a
few occasions" (R. 198 at 69) and in
several instances had changed her
statements to the government after being
warned that she could be prosecuted (R.
198 at 68-70).

  Chance Gaines was incarcerated at the
Dane County Jail along with Meyer while
Meyer was awaiting retrial. According to
Gaines, Meyer had admitted his
involvement in Fenner’s murder. The
government summoned Gaines to testify at
Meyer’s second trial as well as the
subsequent sentencing hearing.

  Gaines’ testimony at trial was to be
limited to the subject of Meyer’s
participation in the narcotics
conspiracy, and the prosecutor would
later represent that Gaines was
instructed not to bring up the subject of
Fenner’s murder. R. 316 at 124. Gaines
nonetheless alluded to "murder cases" on
two separate occasions during the trial.
On direct examination, the prosecutor
asked Gaines whether Meyer had said
anything to him "about his goal in this
trial as it related to Gordy [Hoff] and
Rock." R. 316 at 103. Meyer’s attorney
objected to the question on relevance
grounds, but the court overruled the
objection. Gaines answered:

He, he told me that he was going to try
to, you know, get the conspiracy charges
dropped and the murder cases dropped.
That Rock was the one that, you know, did
it and he framed both of them.

R. 316 at 103. On cross-examination,
Gaines acknowledged that the same
attorney who was prosecuting Meyer, Mr.
Vaudreuil, had also prosecuted Gaines. R.
316 at 122. However, Gaines denied having
known that fact when he first informed
his own attorney of what Meyer had told
him in jail. Meyer’s attorney followed up
on that point:

Q. So you didn’t tell your lawyer to
contract Mr.-- contact Mr. Vaudreuil with
that information?

A. I told him he--asked him what I could
do with it, yeah. I was turning in some
evidence here on a murder case. Yeah, I’d
like to get the time reduction out of it.
I didn’t know that Mr. Vaudreuil was the
prosecuting attorney.

R. 316 at 122. Meyer’s counsel later
attempted to clarify whether Gaines, in
his earlier reference to "murder cases,"
was suggesting that Meyer had claimed
that "Rock was getting back at him
because he gave information about a
murder case[.]" R.316 at 123. Gaines did
not understand the question, however, and
after an unsuccessful attempt to rephrase
it, Judge Shabaz summoned the attorneys
to a bench conference. There he warned
Meyer’s counsel that he was exploring a
troublesome subject. R. 316 at 124.
Meyer’s attorney agreed, but felt he had
little choice given that Gaines had
already broached the subject of murder.
Id. At that point, Judge Shabaz asked
Meyer’s counsel whether he wanted a
special instruction directing the jury to
ignore that part of Gaines’ testimony. R.
316 at 125. Meyer’s attorney declined the
offer and let the subject drop. The
subject of murder was not mentioned again
during the trial.

  After Meyer was convicted a second time,
Gaines returned to testify at the
sentencing hearing on the subject of
Fenner’s murder. According to Gaines,
Meyer said that he, Hoff, and Rock had
agreed that they needed to get rid of
Fenner because he "knew too much" about a
murder in Oklahoma and had already been
questioned by the FBI in that regard. R.
318 at 59. As a ruse to lure Fenner out
to Rock’s Osseo farm, Hoff approached
Fenner and told him that Rock had been
arrested and that they needed to clean
out the safe in Rock’s farmhouse before
the "feds" got to it. R. 318 at 59.
Meanwhile, Meyer and Rock drove to the
farm and chose hiding places from which
they could shoot Fenner. R. 318 at 60.
Meyer told Gaines that he was armed with
a nine-millimeter pistol and that when
Fenner and Hoff arrived, he took a shot
at Fenner. R. 318 at 60-61. Gaines asked
Meyer whether he was the one who killed
Fenner, and Meyer purportedly replied
"[Y]eah, but I just can’t tell them
that." R. 318 at 61. Meyer added that
they did not burn Fenner’s body near the
farmhouse, as Rock had claimed; instead
they had taken the body in the Blazer to
a nearby creek, river, or lake and burned
it there. R. 318 at 61.

  Not surprisingly, Gaines’ testimony had
its vulnerable points. Gaines
acknowledged that his own sentence for
fraud was reduced from thirty-three to
twenty-three months after he testified on
the government’s behalf at Meyer’s second
trial. R. 318 at 57. Another person who
had been an inmate at the Dane County
Jail, Garland Lightfoot, Jr., testified
that Gaines had admitted lying to the
government about Meyer’s responsibility
for the murder. R. 318 at 49-50, 55.

  The Fenner murder had a substantial
impact on Meyer’s sentence. Following
Meyer’s first conviction, Judge Crabb
found that Meyer had murdered Fenner in
the course of the narcotics conspiracy.
R. 198 at 188. Accordingly, she cross-
referenced the murder guideline in
establishing Meyer’s offense level, which
resulted in a mandatory term of life
imprisonment. See U.S.S.G. sec.
2D1.1(d)(1). After Meyer was convicted
the second time on remand, Judge Shabaz
also determined that Meyer was
responsible for Fenner’s murder. Judge
Shabaz’s determination rested in part
upon Judge Crabb’s finding, which he
believed to be the law of the case, but
additionally and independently on his own
review of the pertinent evidence on this
subject. R. 303 at 6. This included the
testimony that Rock had given at the
August 1996 evidentiary hearing (R. 303
at 6, R. 318 at 97-101), as corroborated
by "other credible evidence by witnesses
who . . . previously testified as to the
circumstances of the murder" (R. 303 at
6), and the testimony of Chance Gaines,
whom Judge Shabaz specifically found to
be credible (R. 303 at 6, R. 318 at 101).

II.

A.

  Meyer charges his trial counsel with
ineffectiveness for neglecting to ask for
a mistrial and/or a cautionary
instruction to the jury after Gaines made
gratuitous reference to the "murder
cases." In fact, Meyer argues, his
attorney compounded the problem by asking
questions about these "murder cases"
during cross-examination. As Meyer
himself acknowledges, our review of a
trial attorney’s performance is "highly
deferential." Strickland v. Washington,
466 U.S. 668, 689, 104 S. Ct. 2052, 2065
(1984); see also, e.g., Lowery v.
Anderson, 225 F.3d 833, 843 (7th Cir.
2000). Our analysis begins with the
"strong presumption" that the defendant’s
attorney rendered adequate representation
of his client. Kimmelman v. Morrison, 477
U.S. 365, 381, 106 S. Ct. 2574, 2586
(1986); Strickland, 466 U.S. at 689, 104
S. Ct. at 2065. Moreover, as the Supreme
Court has emphasized, the range of
attorney performance that will satisfy
the Sixth Amendment’s guarantee of
counsel is wide. Kimmelman, 477 U.S. at
381, 106 S. Ct. at 2586; Strickland, 466
U.S. at 689, 104 S. Ct. at 2065. To
prevail upon a claim of ineffective
assistance, a defendant must show both
that his counsel’s service did not meet
an objective standard of reasonableness
and that there is a fair probability that
but for his attorney’s ineffectiveness,
the result of the trial would have been
different. Kimmelman, 477 U.S. at 381,
106 S. Ct. at 2586; Strickland, 466 U.S.
at 687, 104 S. Ct. at 2064./2

  Having reviewed the trial record, we do
not believe that the decision not to seek
a mistrial or, in the alternative, a
cautionary instruction was unreasonable.
Gaines’ two gratuitous references to a
murder case or cases were indeed
unfortunate, and we agree that it was
possible for the jurors to suspect from
Gaines’ remarks that Meyer was implicated
in a murder. On the other hand, the one
and only detail that Gaines offered about
the "murder cases" was that Meyer had
told him "[t]hat Rock was the one that,
you know, did it and he framed both of
them." R. 316 at 103. That bit of
information pointed the finger at Rock as
the murderer, rather than Meyer. And in
certain respects, Rock’s own testimony
gave credence to that notion. The jury
was read the testimony that Rock had
given at the first trial (he refused to
testify at the second trial), and in that
testimony Rock admitted that he had
pleaded guilty to second degree murder in
Wisconsin state court and had been
sentenced to a twenty-year prison term.
R. 315 at 20. Indeed, Rock admitted that
he decided to plead guilty after Hoff and
Meyer had made statements incriminating
him. R. 315 at 71. Rock’s testimony was
therefore ameliorative in two respects:
it would have helped draw the suspicions
raised by Gaines’ remarks away from
Meyer, and it gave credence to Meyer’s
contention (as reported by Gaines) that
Rock was attempting to "frame" both Hoff
and Meyer for having incriminated him.
Quite clearly it was the latter theme
that Meyer’s counsel was attempting to
reinforce on cross-examination, when he
asked Gaines whether Rock was attempting
to get back at Meyer for information he
had given on a murder case. R. 316 at
123. Successful or not, we cannot say
that his attempt was beyond the range of
reasonable tactical decisions once the
charge of murder was unexpectedly put in
the air. Nor can we fault Meyer’s
attorney for declining a limiting
instruction or for not seeking a
mistrial. For the reasons we have
discussed, the import of Gaines’ remarks
was, in the end, ambiguous. A mistrial
motion would surely have been denied. And
where, as here, a witness has raised an
extraneous matter in his testimony, an
instruction directing the jury to
disregard the reference always presents
the risk that it will unduly highlight
the problematic testimony. Under the
circumstances presented here, the
decision not to ask for such an
instruction, and to simply let the matter
drop, was a reasonable tactical decision
and, as such, did not deprive Meyer of
the effective assistance of counsel. See
United States v. Myers, 917 F.2d 1008,
1010-11 (7th Cir. 1990).

B.

  Judge Shabaz’s determination that Meyer
killed Fenner is a finding of fact that
we review for clear error. We noted
earlier that Judge Shabaz treated Judge
Crabb’s previous, identical finding as
the law of the case; but he also made an
independent finding, based on the
evidence before him (which included the
testimony of Gaines, who did not testify
before Judge Crabb), that Meyer was
responsible for Fenner’s murder. Neither
party suggests that Judge Shabaz’s
determination is dependent upon Judge
Crabb’s; both, in fact, largely ignore
the law of the case aspect of his
determination. Meyer instead contends
that the credibility of the government’s
witnesses is so impaired that their
testimony is unreliable as a matter of
law, and therefore insufficient to
support Judge Shabaz’s finding./3

  However undistinguished the government’s
witnesses were, we do not believe that
Judge Shabaz was precluded from relying
on them. Rock, Tenney, and Gaines, the
three key witnesses, each had motives to
lie, and their accounts of the Fenner
murder were not wholly consistent in the
details. The district judge, as the
finder of fact, would have been free not
to credit their testimony. But the
credibility determinations were his to
make, and he chose to believe these
witnesses. That the witnesses against
Meyer had impure motives, criminal
histories, and a record of telling lies
is not remarkable. Nothing in the record
supports the contention that they were
incredible as a matter of law. And
although there were some inconsistencies
among their accounts of the murder (as to
where precisely Fenner’s body was
disposed of, for example, or what road
Rock, Hoff, and Meyer took after the
murder), the discrepancies are not so
serious as to render the basic
proposition on which they all agreed--
that Meyer shot Fenner at the Osseo farm-
-implausible. See Kidd v. Illinois State
Police, 167 F.3d 1084, 1095 (7th Cir.
1999).

C.

  Finally, Meyer contends that sentencing
him pursuant to the first-degree murder
guideline violated his right to due
process, given that the jury convicted
him solely of conspiring to distribute
narcotics. Hoff made this same argument,
unsuccessfully, in Meyer I. (Judge Crabb
found that he directed Meyer to murder
Fenner, and also that he had murdered
another individual). See 157 F.3d at
1081-82. We reject Meyer’s argument for
the same reasons.

III.

  For the reasons discussed above, we
AFFIRM Meyer’s conviction and sentence.

FOOTNOTES

/1 When he testified at Meyer’s first sentencing
hearing, Rock acknowledged that he had burned
Larson’s body at his farm on the very spot that
Fenner’s body was incinerated. R. 195 at 67.

/2 Ineffectiveness claims are normally not well-
suited to consideration on direct appeal. E.g.,
United States v. Neeley, 189 F.3d 670, 683 (7th
Cir. 1999), cert. denied, 120 S. Ct. 1245 (2000).
In this case, however, the claim rests
exclusively on the trial record and Meyer is not
represented on appeal by the same person who
represented him at trial. See id.

/3 We are not called upon to determine here whether
clear and convincing evidence, as opposed to a
mere preponderance, was required to support the
murder finding. See United States v. Masters, 978
F.2d 281, 286-87 (7th Cir. 1992), cert. denied,
508 U.S. 906, 113 S. Ct. 2333 (1993). Nor are we
asked to consider whether the evidence that Meyer
killed Fenner might meet the preponderance
threshold but not rise to the level of clear and
convincing evidence. Meyer contends that the
government’s witnesses are so unreliable as to
fall short of even the lesser benchmark.
