                          In the

United States Court of Appeals
              For the Seventh Circuit

No. 11-1369

U NITED S TATES OF A MERICA,
                                             Plaintiff-Appellee,
                               v.

JACOB S TADFELD,
                                         Defendant-Appellant.


          Appeal from the United States District Court
              for the Western District of Wisconsin.
         No. 08-CR-138-BBC-2—Barbara B. Crabb, Judge.



    A RGUED S EPTEMBER 22, 2011—D ECIDED JULY 27, 2012




 Before P OSNER, F LAUM, and S YKES, Circuit Judges.
  S YKES, Circuit Judge. Amos Mortier was a major
marijuana distributor with a network of street-level
sellers in and around Madison, Wisconsin. He disap-
peared in November 2004, and the Dane County District
Attorney’s Office opened a John Doe proceeding to deter-
mine whether a crime had been committed. Prosecutors
subpoenaed Mortier’s known drug associates to testify
in the John Doe.
2                                            No. 11-1369

  Jacob Stadfeld was one of those dealers and received
a subpoena in December 2004. Rather than appear
before the John Doe judge, assert his right to remain
silent, and follow the steps necessary to obtain formal
immunity, he opted to talk to investigators informally
in exchange for an oral nonprosecution agreement from
the state prosecutor. Stadfeld’s retained counsel mis-
takenly advised him that this nonprosecution agree-
ment immunized him against the use of his statements
by any prosecutor’s office—state or federal. Almost four
years later, based in part on his statements to the John
Doe investigators, Stadfeld was indicted by a federal
grand jury for conspiracy to distribute marijuana.
  He moved to suppress the use of his statements,
arguing that he spoke to investigators only because he
was under the mistaken impression that he had full
immunity. The district court denied the motion, holding
that although Stadfeld got bad advice from his attorneys,
neither the police nor the prosecutor had misled him, so
his statements were not involuntary. The court also
held that regardless of any misunderstanding about
the scope of the nonprosecution agreement, Stadfeld
breached it by lying to the investigators. Stadfeld was
convicted by a jury and now appeals, raising several
claims of error, but focusing primarily on the admission
of his statements at trial.
  We affirm. The district court properly denied the sup-
pression motion. Stadfeld’s statements were not the
product of law-enforcement coercion, and the erroneous
advice from his lawyers did not make his statements
No. 11-1369                                               3

involuntary or inadmissible based on ineffective
assistance of counsel. Moreover, to the extent that
Stadfeld thought he had a comprehensive immunity
agreement, it was conditioned on his telling the truth,
and his failure to do so was a breach.


                      I. Background
  In November 2004, Mortier, a large-scale marijuana
distributor, disappeared from his home in Fitchburg,
Wisconsin, a small town just outside Madison. In re-
sponse to his disappearance, the Dane County Dis-
trict Attorney’s office opened a John Doe proceeding
to investigate and determine whether a crime had been
committed. See generally W IS. S TAT. § 968.26. Prosecutors
subpoenaed Mortier’s known drug associates to testify
in the John Doe. Some appeared before the John Doe
judge, asserted their Fifth Amendment privilege against
self-incrimination, and forced the prosecutor to ask the
judge to convene as a court and grant formal immunity
in order to compel their testimony. See id. §§ 968.26(3),
972.08(1); State v. Washington, 266 N.W.2d 597, 607-08 (Wis.
1978) (explaining the scope of the John Doe proceeding);
see also In re John Doe Proceeding, 660 N.W.2d 260, 282-
83 (Wis. 2003) (Sykes, J., dissenting) (explaining the
limits on the John Doe judge’s power). Stadfeld received
a John Doe subpoena, but he did not follow that formal
course. Instead, on the advice of his retained counsel,
he agreed to talk to investigators informally.
  In exchange for Stadfeld’s informal cooperation, Assis-
tant District Attorney Corey Stephan orally agreed not to
4                                              No. 11-1369

prosecute him based on any statements he made about
his involvement in Mortier’s drug-distribution network
provided that he gave a complete and truthful statement
to investigators. Stadfeld’s attorneys erroneously told
him that Stephan’s nonprosecution promise gave him
complete immunity—not just from state prosecution
but from the use of his statements in any prosecution
against him, state or federal.
   Stadfeld thereafter met several times with John Doe
investigators, including Detective Shannan Sheil-
Morgan of the Fitchburg Police Department. He gave the
investigators a series of conflicting statements about
Mortier’s drug-trafficking activities and his own role in
the marijuana distribution network dating back to 2000.
In 2008 the United States Attorney for the Western
District of Wisconsin used Stadfeld’s statements to
indict him for conspiracy to distribute marijuana in
violation of 21 U.S.C. §§ 841(a)(1) and 846. Stadfeld moved
to dismiss, or alternatively, to suppress the use of his
statements against him at trial. He claimed that the state-
ments were involuntary because he mistakenly be-
lieved, based on the erroneous advice of his counsel,
that he had full immunity when he talked to the John Doe
investigators.
  A magistrate judge heard evidence and recommended
that the district court deny both motions. In his report
and recommendation, the magistrate judge found that
Stadfeld’s statements had not been induced by any coer-
cive conduct on the part of the state prosecutor or the
John Doe investigators. He also noted that to the extent
No. 11-1369                                                   5

Stadfeld relied on the mistaken advice of his counsel, he
was not entitled to dismissal or suppression because he
breached whatever immunity agreement he thought he
had by lying to investigators in a number of material
respects. The district court accepted the magistrate
judge’s recommendation and denied both motions.
  Prior to trial Stadfeld moved to exclude any reference
to Mortier’s disappearance and the existence of the
John Doe investigation, citing the possibility of inflam-
matory prejudice.1 At the final pretrial hearing, however,
Stadfeld’s attorney withdrew the motion and asked the
court to allow the admission of evidence of the John Doe
on the theory that it was necessary to show the bias of
several of the government’s witnesses. In particular,
Stadfeld wanted to argue that the alleged coconspirators
falsely implicated him in the drug conspiracy to shift
the focus off themselves in the John Doe. The court denied



1
  Mortier is still missing and presumed murdered. While
Stadfeld was awaiting sentencing in this case, the government
openly considered attempting to prove that Stadfeld was
involved in Mortier’s death for the purpose of establishing a
factual basis for a murder enhancement under U.S.S.G.
§ 2D1.1(d)(1). See Government’s Request To Continue Sen-
tencing, United States v. Stadfeld, No. 08-CR-138-C (W.D. Wis.
Nov. 3, 2010). The government ultimately decided not to
seek the enhancement. See Notice of Government’s Intent To
Not Seek Enhancement, United States v. Stadfeld, No. 08-CR-138-C
(W.D. Wis. Jan. 18, 2011); Government’s Sentencing Memoran-
dum, United States v. Stadfeld, No. 08-CR-138-C (W.D. Wis.
Feb. 1, 2011).
6                                               No. 11-1369

this request. Later, however, the court accepted defense
counsel’s request to refer generically to the existence of
“another investigation” or a “different investigation”
when questioning the witnesses.
  At trial the government called Detective Sheil-Morgan
to testify about the interviews with Stadfeld. During cross-
examination, Stadfeld’s counsel asked the detective if
she could produce her interview notes. She testified that
the notes were probably destroyed after she filed her
formal reports memorializing the interviews. Stadfeld’s
attorney asked the court to order Sheil-Morgan to
produce her notes. The judge told the detective to look
for her notes during a court recess, but later reversed
course. The government objected to the defense de-
mand for the notes, pointing out that Sheil-Morgan’s
written reports had been produced during discovery,
and there was no reason to think there was any discrep-
ancy between her formal reports and the notes. The
court sustained the objection and denied Stadfeld’s
request for production of the detective’s interview notes.
  The jury found Stadfeld guilty of conspiracy to
distribute 100 or more kilograms of marijuana. At sen-
tencing the court accepted the government’s position
that the total drug quantity for the conspiracy was at
least 2,177 kilograms of marijuana (about 100 pounds per
month for 48 months) and attributed the entire amount
to Stadfeld in light of his intimate knowledge of the
conspiracy and willingness to join it. More specifically,
the court found that Stadfeld was aware of the source
of the drugs, the means of transportation, the drug-pack-
No. 11-1369                                             7

aging and delivery methods, the quantities customarily
delivered, and the names of other marijuana distributors
in the chain. The court’s relevant-conduct finding
yielded an advisory guidelines range of 168 to 210
months. The judge sentenced Stadfeld to 144 months.
This appeal followed.


                     II. Discussion
  Stadfeld raises three claims of error. First, he argues
that the district court should have suppressed his state-
ments to the John Doe investigators. He also challenges
the court’s evidentiary rulings regarding Detective Sheil-
Morgan’s interview notes and the exclusion of the
evidence of Mortier’s disappearance and the existence of
the John Doe investigation. Finally, he claims that the
court erroneously held him responsible for the full
amount of marijuana distributed by the conspiracy as
jointly undertaken criminal activity for sentencing pur-
poses.


A. Stadfeld’s Motion To Suppress
  We review the denial of Stadfeld’s motion to suppress
under a dual standard of review: Factual findings are
reviewed for clear error, with special deference to the
district court’s credibility determinations, and conclu-
sions of law are reviewed de novo. United States v.
Villapando, 588 F.3d 1124, 1127 (7th Cir. 2009). Stadfeld
argues that his statements to the John Doe investigators
were involuntary and should have been suppressed.
8                                                No. 11-1369

His basic contention is that but for the bad advice of his
attorneys about the scope of the state nonprosecution
agreement, he would not have spoken with the police.
  A conviction obtained by the use of an involuntary
confession violates due process. United States v. Vallar, 635
F.3d 271, 281 (7th Cir. 2011). A confession is voluntary
and admissible if, “ ‘in the totality of circumstances, it is
the product of a rational intellect and free will and not
the result of physical abuse, psychological intimidation,
or deceptive interrogation tactics that have overcome
the defendant’s free will.’ ” Id. at 282 (quoting United
States v. Gillaum, 372 F.3d 848, 856 (7th Cir. 2004)). A
false promise of lenience is “an example of forbidden
[interrogation] tactics, for it would impede the suspect
in making an informed choice as to whether he was
better off confessing or clamming up.” United States v.
Baldwin, 60 F.3d 363, 365 (7th Cir. 1995).
   An obvious flaw in Stadfeld’s argument is that it rests
on the mistaken advice of his lawyers, not coercive
conduct by law-enforcement officers. “[C]oercive police
activity is a necessary predicate to [a] finding that a
confession is not voluntary within the meaning of the
Due Process Clause of the Fourteenth Amendment.”
United States v. Huerta, 239 F.3d 865, 871 (7th Cir. 2001)
(internal quotation marks omitted); see also Schneckloth
v. Bustamonte, 412 U.S. 218, 226 (1973). Even “[t]he
most outrageous behavior by a private party seeking to
secure evidence against a defendant does not make that
evidence inadmissible under the Due Process Clause.”
Colorado v. Connelly, 479 U.S. 157, 166 (1986). This principle
is hornbook law:
No. 11-1369                                               9

    Coercive police activity is a necessary predicate to
    finding that a confession is not “voluntary” within
    the meaning of the Due Process Clause. Although a
    defendant’s mental condition may be a significant
    factor in the “voluntariness calculus,” this does not
    justify a conclusion that his mental condition, by
    itself and apart from its relation to official coercion,
    should ever dispose of the inquiry into constitu-
    tional “voluntariness.”
2A C HARLES A LAN W RIGHT & P ETER J. H ENNING , F EDERAL
P RACTICE AND P ROCEDURE § 414, at 162 (4th ed. 2009).
  Simply put, there was no coercive police activity here.
Neither the state prosecutor nor the John Doe investi-
gators made any threats or false promises of leniency
to obtain Stadfeld’s statements. They did not resort to
subterfuge or deceptive interrogation tactics to get him
to talk. In exchange for a complete and truthful
statement to the John Doe investigators, the state pros-
ecutor promised not to prosecute Stadfeld but made
no representations about a federal prosecution. The
suggestion that the state prosecutor’s oral nonprosecu-
tion agreement gave Stadfeld complete immunity—
including immunity from federal prosecution—came
from his own lawyers, not a government agent.
  Stadfeld concedes the point and instead takes a
different tack. Citing United States v. Cahill, 920 F.2d 421
(7th. Cir. 1990), and United States v. Cichon, 48 F.3d 269
(7th Cir. 1995), he argues that the government can be held
to a promise of immunity it did not actually make—even
absent official misconduct—if (1) the defendant genuinely
10                                              No. 11-1369

believed that the government made the promise; and
(2) the belief was objectively reasonable. This is an ex-
travagant misreading of Cahill and Cichon.
  Cahill involved a prosecution for mail fraud, wire
fraud, and several other federal offenses arising out of the
collapse of a thrift-savings institution insured by the
FDIC. 920 F.2d at 422-23. Federal regulators evaluating
the collapse looked into the thrift’s relationship with a
mortgage company run by the defendant Cahill. Id.
Although an Assistant United States Attorney initially
assured Cahill that he was not the target of an ongoing
criminal investigation, federal authorities eventually
came to believe that Cahill was involved in the thrift’s
collapse. Id. at 423-24. The prosecutor told Cahill that
immunity was not appropriate under the circumstances
and suggested that if he wanted to cooperate, he could
make a proffer. Id. at 424. Cahill agreed to do so and was
later indicted. Id. He moved to suppress the use of his
statements, insisting that he had been granted immunity,
or alternatively, that his statements were involuntary
because they were induced by a false promise of im-
munity. Id. at 425.
  The district court rejected these arguments, crediting
the Assistant U.S. Attorney’s testimony that he never
offered Cahill immunity. Id. at 426. We affirmed this fact-
specific holding. Id. at 427. There was no evidence that
Cahill had been granted immunity, nor any support for
his claim that his statements were made under a “percep-
tion,” wrongfully induced by the prosecutor, that he
had been granted immunity. Id. On this latter point, we
No. 11-1369                                               11

observed that “[a] defendant’s perception that he is
providing testimony under a grant of immunity does
not make his statement involuntary, unless the percep-
tion was reasonable.” Id. (citing United States v. Shears,
762 F.2d 397, 401-03 (4th Cir. 1985)). To the extent that
Cahill “perceived” that he had immunity, we held
that “[the] perception was unreasonable.” Id.
  Stadfeld seems to think that Cahill stands for the proposi-
tion that a defendant’s statement can be deemed involun-
tary and thus subject to suppression even in the absence
of evidence of coercive tactics by law enforcement. Not
true. To the contrary, Cahill relied on a Fourth Circuit
decision that followed the norm of deciding a motion
to suppress by asking whether the police engaged in
coercive conduct to overcome the defendant’s free will.
See Shears, 762 F.2d at 402 (“[T]he defendant’s percep-
tion of what government agents have promised is an
important factor in determining voluntariness.”). Nothing
in Cahill signals any departure from well-established
voluntariness doctrine.
  Stadfeld also misunderstands Cichon. That case also
involved a defendant’s effort to suppress the use of his
statements based on a claim that government agents
falsely promised him immunity. 48 F.3d at 275-76. As in
Cahill, the district court rejected the claim because it was
factually unsupported, and we affirmed. Id. at 276 (“The
district court also made it clear that it disbelieved
Mr. Cichon’s testimony that he was promised immunity.”).
Neither Cichon nor Cahill supports Stadfeld’s argument
that his statements can be deemed involuntary in the
absence of coercive conduct by government agents.
12                                              No. 11-1369

  In the alternative, Stadfeld argues that his statements
to the John Doe investigators should have been sup-
pressed under Strickland v. Washington, 466 U.S. 688 (1984),
as the product of the ineffective assistance of his counsel.
This argument overlooks the basic principle that a Sixth
Amendment ineffective-assistance-of-counsel claim is
viable only after the right to counsel attaches, which takes
place “at or after the initiation of adversary judicial
criminal proceedings—whether by way of formal charge,
preliminary hearing, indictment, information, or arraign-
ment.” Kirby v. Illinois, 406 U.S. 682, 689 (1972). Here,
Stadfeld agreed to talk to the police informally, in lieu
of appearing before the John Doe judge, long before the
initiation of adversary judicial criminal proceedings.
  A John Doe is a special investigative proceeding
that developed as a feature in Wisconsin criminal law in
the late nineteenth century under a statute that allowed
a magistrate to examine witnesses under oath after re-
ceiving a complaint that a crime had been committed. See
Washington, 266 N.W.2d at 603 (describing the statutory
history). A John Doe is “not so much a procedure for
the determination of probable cause as it is an inquest
for the discovery of crime in which the judge has sig-
nificant powers,” including the ability to subpoena wit-
nesses. Id. at 604. A John Doe proceeding does not
begin the adversarial process against a criminal accused.
Rather, the role of the John Doe is to gather evidence from
witnesses in order to determine whether a criminal com-
plaint should be filed or whether no crime was com-
mitted. Id. at 605. See also In re John Doe Proceeding, 660
N.W.2d at 275-76; id. at 286-87 (Sykes, J., dissenting)
No. 11-1369                                                 13

(explaining the role and limits of a John Doe judge’s
power).
  Accordingly, the John Doe investigation into Mortier’s
disappearance was not the beginning of the ad-
versarial criminal process against Stadfeld. Although
the John Doe statute permits witnesses to have counsel
present during their testimony, the proceeding remains
nonadversarial and counsel’s role is strictly limited. See
W IS. S TAT. § 968.26(3) (stating that “counsel shall not be
allowed to examine his or her client, cross-examine
other witnesses, or argue before the judge”). Stadfeld’s
receipt of a John Doe subpoena did not trigger his Sixth
Amendment right to counsel. Because his constitutional
right to counsel had not attached when he gave his state-
ments to investigators, there is no basis for a claim of
ineffective assistance of counsel.
  Finally, we agree with the district court that to what-
ever extent Stadfeld thought he had a comprehensive
immunity agreement, it was conditional. Any reasonable
belief in a promise of immunity vanished when he know-
ingly lied to investigators. Stadfeld was not entitled to
the remedy of suppression.


B. Stadfeld’s Evidentiary Challenges
  1. Evidence of Mortier’s Disappearance and the John Doe
  We review a district court’s evidentiary rulings for abuse
of discretion. United States v. Penaloza, 648 F.3d 539, 544
(7th Cir. 2011). Stadfeld argues that the district court
abused its discretion by refusing to allow any evidence
14                                            No. 11-1369

of Mortier’s disappearance and the John Doe investiga-
tion. Although Stadfeld’s attorneys initially moved to
exclude this evidence, they later withdrew that motion
and asked the court to allow it, arguing that the evidence
was relevant to the credibility of the coconspirators
who would be testifying against Stadfeld. Their theory
was that the coconspirators had a motive to lie to deflect
attention away from themselves in the John Doe.
  Before addressing the merits of this argument, we
note first that the government maintains that Stadfeld
waived any objection to the court’s ruling excluding this
evidence. That is incorrect. Near the end of the final
pretrial hearing, after the court had denied the motion
to admit evidence of the John Doe, Stadfeld’s attorney
asked the court for permission to refer to “another in-
vestigation” when questioning the witnesses. The court
agreed. This was not a waiver, as the government con-
tends, but merely an adaptation to an adverse evi-
dentiary ruling made by the district court. Cf. Wilson
v. Williams, 182 F.3d 562, 564 (7th Cir. 1999) (en banc)
(holding that adaptation to adverse ruling on motion in
limine did not waive established objection).
  On the merits, however, the district court’s decision to
exclude this evidence was entirely sound. Admitting
evidence about Mortimer’s disappearance and the John
Doe would have taken the trial far afield from the
charged crime involving the marijuana-trafficking con-
spiracy. Excluding this evidence did not seriously inhibit
Stadfeld’s ability to cross-examine the coconspirators
to expose their self-interest. Counsel was permitted
No. 11-1369                                               15

to—and did—cross-examine the coconspirators based on
their testimony in “another investigation” and used this
line of inquiry to attack their credibility. The district
court did not abuse its discretion in excluding this evi-
dence.


  2.   Request To Inspect Detective Sheil-Morgan’s Interview
       Notes
  Stadfeld contends that his inability to obtain Detective
Sheil-Morgan’s interview notes prevented him from
attacking her credibility and deprived him of important
information about what was said during the police inter-
views. He has not identified any reason to suspect that
the detective’s interview notes are inconsistent with her
written reports. Nor does he cite any legal authority—no
evidentiary rule, no discovery rule, no case—to support
this claim of error. Undeveloped arguments are con-
sidered waived. Gross v. Town of Cicero, Ill., 619 F.3d 697,
704 (7th Cir. 2010) (“[I]t is not this court’s responsibility
to research and construct the parties’ arguments, and
conclusory analysis will be construed as waiver.” (quota-
tion marks omitted)).


C. Relevant-Conduct Findings
  Finally, Stadfeld challenges the district court’s fact-
finding regarding the scope of his jointly undertaken
criminal activity for purposes of estimating drug quantity
at sentencing. We review the district court’s sentencing
findings for clear error. United States v. Edwards, 115 F.3d
16                                                    No. 11-1369

1322, 1325 (7th Cir. 1997). A factual finding is clearly
erroneous when the court “is left ‘with a definite and
firm conviction that a mistake has been committed.’ ” Id.
(quoting United States v. Herrera, 54 F.3d 348, 356 (7th Cir.
1995)). “ ‘[I]f two permissible views exist, the fact-finder’s
choice between them cannot be clearly erroneous.’ ” United
States v. Taylor, 72 F.3d 533, 546 (7th Cir. 1995) (quoting
United States v. McDonald, 22 F.3d 139, 144 (7th Cir. 1994)).
  To determine drug quantity for purposes of relevant-
conduct analysis in a conspiracy case, the district court
must first determine the scope of the criminal activity
the defendant agreed to jointly undertake. See U.S.S.G.
§ 1B1.3(a)(1)(B); United States v. Salem (Salem I), 597 F.3d
877, 886 (7th Cir. 2010). We have said that several factors
are relevant: (1) the existence of a single scheme;
(2) similarities in modus operandi; (3) coordination of
activities among schemers; (4) pooling of resources or
profits; (5) knowledge of the details of the scheme; and
(6) length and degree of the defendant’s participation in
the scheme. United States v. Salem (Salem II), 657 F.3d
560, 564 (7th Cir. 2011).2


2
  The district court’s assessment of these factors is not the end
of the relevant-conduct analysis. After determining the scope of
jointly undertaken criminal activity, “the court must make a
two-part determination of whether the conduct of others was
both in furtherance of that joint criminal activity and reason-
ably foreseeable to the defendant in connection with the
joint criminal activity.” United States v. Salem (Salem I), 597 F.3d
877, 886 (7th Cir. 2010) (citing United States v. Fox, 548 F.3d
                                                      (continued...)
No. 11-1369                                                    17

  Here, the district court first determined that the
scope of Stadfeld’s jointly undertaken criminal activity
included the regular receipt by the Mortier organization of
large deliveries of marijuana—about 100 pounds per
month— from Canada through New York for distribution
in and around Madison. The court also determined that
the marijuana typically arrived in Madison in private
cars, was generally offloaded at Mortier’s residence, and
then fronted to lower-level dealers like Stadfeld for
further distribution. The court found that Stadfeld was
aware of the specific details of the conspiracy and its
method of operation, including the source of the drugs,
the methods of packaging and delivery, delivery quanti-
ties, and the names of other street-level marijuana dis-
tributors supplied by Mortier.
  Stadfeld argues that these findings are insufficiently
particularized to support the court’s determination that
the scope of the criminal activity he jointly agreed to
undertake was coextensive with the entire marijuana-



2
   (...continued)
523, 532 (7th Cir. 2008)). The sentencing guidelines provide
that a defendant is accountable for the jointly undertaken
criminal conduct of others, provided the conduct is: (1) in
furtherance of the jointly undertaken criminal activity; and
(2) is reasonably foreseeable in connection with that criminal
activity. U.S.S.G. § 1B1.3 cmt. n.2. Here, Stadfeld argues only
that the district court failed to make sufficiently particularized
findings regarding the scope of his jointly undertaken agree-
ment. He does not challenge the other steps in the court’s
analysis.
18                                              No. 11-1369

trafficking conspiracy during the relevant time period.
We disagree. The court’s findings, though not ac-
companied by lengthy analysis, were easily sufficient and
basically tracked the knowledge and modus operandi
factors identified in our decision in Salem II. The district
court also observed as a more general matter that the
evidence at trial supported the existence of a single
scheme and demonstrated substantial coordination of
activities by and among the coconspirators, including
Stadfeld. See id. Finally, the court noted that Stadfeld was
involved in the conspiracy for more than four years—from
2000 to 2004—easily long enough to support the conclu-
sion that he “agreed to advance the goals of the entire
scheme and [is] thus accountable for jointly under-
taken activity.” Id. at 565. The district court’s findings
regarding the scope of Stadfeld’s jointly undertaken
criminal activity were not clearly erroneous.
                                                 A FFIRMED.




                           7-27-12
