In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3961

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GUY J. WESTMORELAND,

Defendant-Appellant.

Appeal from the United States District Court 

for the Southern District of Illinois.

No. 3:98-cr-30022-WDS-2—William D. Stiehl, Judge.

ARGUED OCTOBER 12, 2012—DECIDED MARCH 25, 2013

Before KANNE, TINDER, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. Over a decade ago, defendant

Guy Westmoreland was convicted in two trials, in the

first for conspiracy to distribute a controlled substance,

and in the second for five additional counts stemming

from the murder of the wife of his partner in drugdealing: causing the death of a person through the use

of a firearm during a drug trafficking crime; using interstate commerce facilities to commit murder for hire;
2 No. 10-3961

conspiring to commit murder for hire; tampering with

a witness by committing murder; and causing the death

of a witness through use of a firearm. His convictions

were affirmed on appeal. See United States v. Westmoreland,

240 F.3d 618 (7th Cir. 2001) (“Westmoreland I”) (drug

conspiracy conviction); United States v. Westmoreland, 312

F.3d 302 (7th Cir. 2002) (“Westmoreland II”) (murder-related

convictions).

After he was convicted in the murder case, and

while his appeal from those convictions was pending in

Westmoreland II, Westmoreland filed a motion for new

trial under Federal Rule of Criminal Procedure 33.

The motion argued that the government’s supposedly

outrageous conduct violated his right to due process of

law and that a new trial on his murder convictions

was warranted because of newly discovered evidence.

He filed his motion on October 4, 2002. Other than

granting the government an extension of time for its

response, the district court took no action on Westmoreland’s motion for several years. In the meantime,

Westmoreland requested the appointment of counsel

and complained to the district court about the delay.

The district court ultimately denied his motion on

December 13, 2010, more than eight years after it was

filed. United States v. Westmoreland, 2010 WL 5141770

(S.D. Ill. Dec. 13, 2010). Westmoreland appeals.

We review the denial of a motion for a new trial for

an abuse of discretion. United States v. Boender, 649 F.3d

650, 654 (7th Cir. 2011). “The district court abuses its

discretion when it makes an error of law or when it
No. 10-3961 3

makes a clearly erroneous finding of fact.” United States

v. Freeman, 650 F.3d 673, 678-79 (7th Cir. 2011).

Westmoreland also argues that the district court’s delay

and its refusal to appoint counsel violated his Sixth

Amendment rights, and we review those claims de novo.

United States v. Foster, 701 F.3d. 1142, 1150 (7th Cir.

2012) (“We ‘review de novo a district court ruling that

affects a defendant’s Sixth Amendment rights.’ ”),

quoting United States v. Nettles, 476 F.3d 508, 517 (7th

Cir. 2007). Though we are troubled, to say the least, by

the district court’s unexplained eight-year delay in

ruling, Westmoreland’s arguments on the merits do not

warrant overturning his convictions or ordering a new

trial. The district court did not abuse its discretion

in denying a new trial, and it correctly found that his

constitutional rights were not violated. We affirm.

I. Factual and Procedural Background

A brief background of Westmoreland and his crimes

will serve to frame this case. Additional chilling details

are available in Westmoreland I and II. In 1997 and 1998,

Westmoreland and Richard Abeln were partners in a

drug distribution operation. Using Abeln’s airplane, the

pair imported nine kilograms of cocaine and about

ninety pounds of marijuana from Texas to a small airport

in Illinois. In late 1997, Abeln wanted to end his marriage but did not want to split his assets with his wife

through a divorce. Instead, he decided to have her

killed. Westmoreland had previously mentioned to

Abeln that he could have someone killed for $1,000.
4 No. 10-3961

Based on that comment, Abeln asked Westmoreland

about the possibility of killing his wife. Initially,

Westmoreland declined. Then, to persuade him to

take the job, Abeln told Westmoreland (falsely) that

his wife had discovered their drug trafficking business

and was going to inform law enforcement. Westmoreland changed his mind and began making arrangements.

Westmoreland recruited Deandre Lewis to commit

the murder. Abeln and Westmoreland agreed that the

murder would occur on December 27, 1997, at a local

airport and that it would be staged as a robbery gone

bad. Lewis drove to the scene in a pick-up truck provided by Westmoreland. Abeln drove his wife to the

location in the family car. The couple’s twelve-year-old

son was also in the car. While the Abeln family was

there, Lewis approached their car and demanded

Mrs. Abeln’s jewelry. He pulled her from the car and

shot her with two rounds from a double-barreled shotgun. She died at the scene.

At the time of the murder, Westmoreland was on vacation with his family in Florida to establish an alibi.

When he returned, however, he helped Lewis dispose

of Mrs. Abeln’s jewelry. He also remained in regular

contact with Abeln as the investigation began, advising

Abeln about how to mislead the police. In spite of

those efforts, the “robbery gone bad” scenario fell apart

quickly under police scrutiny. The investigation soon

led to Westmoreland. He was arrested on January 6,

1998. He was convicted on August 20, 1998 of the drug

conspiracy and on June 28, 2001 of crimes related to the
No. 10-3961 5

murder. The district court sentenced Westmoreland to

240 months on the drug conspiracy charge and life imprisonment on the murder-related charges, to be

served concurrently. 

II. Due Process

Westmoreland’s opening argument in this appeal is

that certain conduct by the government was so outrageous that his convictions should be vacated and

the charges against him dismissed on due process

grounds. Though the facts presented are certainly

unusual, his legal argument is not persuasive. After

Westmoreland was convicted of the drug charge in

Westmoreland I, but before he was tried for the murder

charges in Westmoreland II, the government learned

that one of the lead investigating agents, an Illinois

State Police agent named Martin Milkovich, had

engaged in a sexual affair with Westmoreland’s wife,

Bronnie. Initial indications were that the affair began

while the case against Westmoreland was building and

lasted several months. Upon discovering the affair, the

federal government dropped its efforts to seek the

death penalty against Westmoreland and Lewis. The

government did not call Milkovich as a witness in

Westmoreland’s second trial, though Bronnie Westmoreland did testify. When questioned about the

affair with Milkovich, she testified that the affair

lasted from November 1999 until April 2000.

There is no question that the affair tainted Milkovich.

In a separate investigation, the Illinois State Police inter-
6 No. 10-3961

viewed Assistant United States Attorney Kit Morrissey,

one of the government’s lead prosecutors, concerning

the affair. Morrissey said that it would have been “important” for him to know that Milkovich had established a sexual relationship with Bronnie:

because of the obvious damage to the case that

that could cause. That would have been something

we would have had to disclose, which we did when

we did find out about it. And it would also have

been — obviously, it would have told me that neither

of them can be trusted, and that — I mean, it would

affect my case in every aspect.

Until the affair was discovered, Morrissey explained,

Milkovich had been an important government witness

who was “central to the investigation.” The Illinois

State Police ultimately issued a formal complaint against

Milkovich and his employment was terminated.

Westmoreland argues that Milkovich’s affair with

Bronnie Westmoreland was so outrageous that it

infected the entire government investigation and prosecution, denying him due process of law. The argument

is based on a dictum in United States v. Russell, 411 U.S.

423, 431-32 (1973), in which the Supreme Court rejected

an entrapment defense in an early methamphetamine

case. Writing for the Court, then-Justice Rehnquist speculated that the Court “may some day be presented”

with conduct by government agents so outrageous that it

should bar the government from prosecuting at all. In

Russell itself, a government agent had provided one

ingredient for the drug that was difficult but not impos-
No. 10-3961 7

sible to obtain. That was not so outrageous as to bar

the prosecution, and the Supreme Court has not found

such a bar in any other cases it has decided.

Russell offers no real guidance to lower courts as to

the type or level of conduct by the government that

might, standing alone, amount to a due process violation, though the dictum has been the focus of arguments by a number of defendants in the lower federal

courts. Without such guidance from the Supreme

Court, our court has disallowed such a defense in this

circuit. See United States v. Stallworth, 656 F.3d 721, 730 (7th

Cir. 2011), citing United States v. White, 519 F.3d 342, 346

(7th Cir. 2008); United States v. Garcia, 89 F.3d 362,

367 (7th Cir. 1996); United States v. Boyd, 55 F.3d 239, 241

(7th Cir. 1995).

Westmoreland points out that other circuits have recognized the outrageous conduct defense, though outright reversals on the defense are extremely rare. These

few cases make clear that even if we were inclined to

reexamine our precedent rejecting the defense, this case

would not support the defense. Where it has been recognized, the defense has come into play only where the

government’s involvement created a crime or criminal

enterprise that did not exist before, and where the government had to coerce the defendant to commit the

crime by some unreasonable means. For example, in

United States v. Solorio, 37 F.3d 454, 460-61 (9th Cir. 1994),

the Ninth Circuit initially reversed a defendant’s drug

conviction on an outrageous conduct theory because

the court believed that the amount the government paid
8 No. 10-3961

to an informant had depended on the defendant’s

eventual conviction and the quantity of drugs involved.

The panel later withdrew that opinion. 53 F.3d 341 (9th

Cir. 1995). See also, e.g., United States v. Mosley, 965 F.2d

906, 908-09, 914 (10th Cir. 1992) (agent posing as drug

dealer enticed defendant to buy quantity of cocaine;

court found that although government’s zeal was excessive, conduct was not sufficiently outrageous to find

due process violation); United States v. Twigg, 588 F.2d

373, 380-81 (3d Cir. 1978) (outrageous conduct barred

defendants’ drug prosecution where government,

through confidential informant, set up a methamphetamine lab and supplied equipment and ingredients).

This case is quite different from those. Westmoreland

conspired to murder Mrs. Abeln without any coercion,

assistance, or involvement by the government. The

murder happened long before Milkovich met Bronnie

Westmoreland. Even if we assume that the affair tainted

Milkovich’s investigation, the affair did not play any

role in the crime itself. If the outrageous conduct defense were available at all, therefore, the affair would

not satisfy the basic factual requirement for it to apply. Milkovich’s relationship with Westmoreland’s

wife, although a serious lapse of Milkovich’s professional judgment, was not an outrageous violation of

Westmoreland’s due process rights and does not warrant reversal. The district court did not err on this ground.

III. Newly Discovered Evidence

Westmoreland next argues that he should have a new

trial on the basis of newly discovered evidence. Federal
No. 10-3961 9

Rule of Criminal Procedure 33(a) permits a district court

to vacate any judgment and grant a new trial “if the

interest of justice so requires.” To show that the interest

of justice requires a new trial, a defendant must

provide evidence that (1) came to his knowledge only

after trial; (2) could not have been discovered sooner

through the exercise of due diligence; (3) is material and

not merely impeaching or cumulative; and (4) would

probably lead to an acquittal in the event of a retrial. See

United States v. Hagler, 700 F.3d 1091, 1101 (7th Cir. 2012),

citing United States v. McGee, 408 F.3d 966, 979 (7th

Cir. 2005); United States v. Reyes, 542 F.3d 588, 595 (7th Cir.

2008). We “approach such motions with great caution

and are wary of second-guessing the determinations of

both judge and jury.” McGee, 408 F.3d at 979, quoting

United States v. DePriest, 6 F.3d 1201, 1216 (7th Cir. 1993).

Westmoreland presents two categories of “newly discovered” evidence. We address each in turn.

A. Timing of the Affair

With his motion for a new trial, Westmoreland presented

affidavits of three witnesses who stated that the affair

between Milkovich and Bronnie Westmoreland began

during Milkovich’s investigation — not after the investigation had concluded, as Bronnie testified at trial.

Amy Wade, Greg Schmidt, and Tina Kuehl all swore

that they had witnessed encounters between Milkovich

and Bronnie in 1998. Amy Wade stated that in May 1998,

she and Bronnie went dancing all night with Milkovich.

Greg Schmidt, a neighbor, testified that in August 1998,
10 No. 10-3961

Before trial, on May 18, 2001, Westmoreland submitted a 1

document to the district court captioned “Ex Parte Supplemental Response To Government’s Motion In Limine

Regarding Milkovich/Bronnie Westmoreland Relationship.”

In it, he asserted that he had a witness, presumably Kuehl,

with information that Milkovich and Bronnie were together

as early as February or March 1998.

he saw Milkovich visit Bronnie on several occasions,

staying for several hours, sometimes overnight, with

Milkovich sometimes leaving with different clothes than

he had worn when he arrived. On one occasion Schmidt

saw Bronnie and Milkovich kiss. The third affiant, Tina

Kuehl, is Westmoreland’s sister. She stated that in

March 1998, she went into Bronnie’s home and saw

Milkovich and Bronnie leaving Bronnie’s bedroom as

Milkovich was tucking in his shirt.

Kuehl’s testimony was not “new” — she submitted an

affidavit in 2001, before the murder trial — but the trial

court doubted Kuehl’s credibility because of her relationship to Westmoreland and because Kuehl had

assisted Bronnie in destroying evidence. Westmoreland

1

concedes that Kuehl’s evidence is not new, but he

argues that Wade’s and Schmidt’s evidence is new. He

argues that the district court’s negative assessment of

Kuehl’s credibility was the reason he did not anticipate

or discover earlier that other witnesses could corroborate Kuehl’s testimony, and it was only after trial,

when Wade and Schmidt came forward, that Kuehl’s

statement had any force. Westmoreland concludes that

if this corroborating evidence had come to light earlier, it
No. 10-3961 11

likely would have led to his acquittal because it would

have suggested to the jury that Milkovich’s part of the

murder investigation had been corrupted by the affair.

Westmoreland’s argument shows one of its fatal

flaws. For the court to treat the Wade and Schmidt affidavits as new evidence, Westmoreland must demonstrate that they could not have been discovered

sooner through the exercise of due diligence. Before his

trial began, Westmoreland knew of the facts underlying

the affidavits. He knew of the affair, and he believed

that it had begun earlier than the government and

Bronnie said it did. Though he may have thought at

the time that it was not worthwhile to pursue other

witnesses who could corroborate his sister, he does not

argue that he could not have discovered such witnesses

sooner, only that he chose not to try. That is not due

diligence. See United States v. Theodosopoulos, 48 F.3d

1438, 1449 (7th Cir. 1995) (witness’s post-trial affidavit

was not “newly discovered” where defendant failed

to exercise due diligence; defendant took no steps to

secure witness’s testimony but instead sought a missing

witness instruction); United States v. McGaughey, 977

F.2d 1067, 1075 (7th Cir. 1992) (failure to conduct exhaustive search for document showed lack of necessary

due diligence). This was not newly discovered evidence

warranting a new trial.

Westmoreland also fails to show that he likely

would have been acquitted if the jury had heard that

Milkovich’s affair overlapped with his investigation.

There is no doubt that Milkovich’s behavior tainted the
12 No. 10-3961

Westmoreland also argues that the district court erred by

2

rejecting the Wade and Schmidt affidavits because they lacked

“any foundation as to how the affiants may have been able to

identify the individual allegedly involved with Bronnie as

Milkovich.” Westmoreland, 2010 WL 5141770, at *4. Without

such a showing, the district court found that the affidavits

would have been inadmissible. Given our resolution of the

question of whether the affidavits warrant a new trial, their

admissibility is moot.

government’s case, and the longer the affair, the more

extensive we can assume the taint would have been.

We are not persuaded, though, that evidence of a

longer affair would have led to acquittal. The jury

that convicted Westmoreland of Mrs. Abeln’s murder

learned that Milkovich and Bronnie had had an affair.

Westmoreland has not identified any particular evidence against him that should be deemed less credible

or probative if the affair began back in the spring of

1998, which would still have been several months after

Mrs. Abeln’s murder. It is highly doubtful that the outcome of the murder trial would have been any different

if the jury had heard evidence — evidence that was

disputed by the government — that the affair had begun

while Milkovich was still investigating the case. In sum,

the Wade and Schmidt affidavits also are not “newly

discovered evidence” that would warrant a new trial.2

B. Milkovich’s Recantation

Throughout the government’s investigation and prosecution, Milkovich stated that when Westmoreland was
No. 10-3961 13

The district court considered this evidence under the 3

standard used to consider the impact of recanted trial testimony. Under that standard, the court must consider whether:

(1) it is reasonably well satisfied that testimony given by the

witness was false; (2) the jury might have reached a different

conclusion absent the false testimony or if it had known that

the testimony was false; and (3) the defendant was taken by

surprise and was unable to meet the false testimony or did

not know of its falsity until after trial. See United States v.

Taylor, 600 F.3d 863, 870 (7th Cir. 2010). Westmoreland argues

that the district court erred when it considered Milkovich’s

recantation under this standard. Milkovich did not testify in

Westmoreland II, so whatever Milkovich might have recanted

(continued...)

arrested, he said he did not know anything about a

“murder-for-hire” scheme. The evidence was important

because no one had said anything to Westmoreland at

that point about a murder. See Dkt. 904 Ex. D (Milkovich

Jan. 6, 1998 investigative report) (“WESTMORELAND

told agents he didn’t know anything about any murder,

especially a murder for hire, but did admit to selling

drugs for RICHARD ABELN.”); Dkt. 904 Ex. F (Milkovich

grand jury testimony). Milkovich repeated this testimony

in Westmoreland I, Dkt. 904 Ex. H (Milkovich trial testimony), but Milkovich did not testify in Westmoreland II.

Westmoreland argues in this appeal — which again,

is an appeal from the district court’s denial of his

motion for a new murder trial in Westmoreland II — that

Milkovich later recanted these statements and that

his recantation is new evidence warranting a new trial

on the murder charges. We disagree.3
14 No. 10-3961

(...continued) 3

was not trial testimony in that case. Westmoreland argues

that the district court should have considered the evidence

under the test for newly discovered evidence. The government does not argue otherwise. We review the district court’s

decision under the test for newly discovered evidence, but

Westmoreland’s claim fails under either test.

In support of his motion for a new trial, Westmoreland

presented the affidavits of his friend, Steve Korris,

and his sister, Renee Westmoreland. They stated that

they met with Milkovich on January 8, 2004, and that at

the meeting he recanted his earlier statements, telling

Korris and Renee Westmoreland that Westmoreland

made no statement to police whatsoever upon his

arrest and instead “lawyered up.” See Dkt. 904, Ex. B

(3/11/2004 Korris Affidavit) (Milkovich told Korris that

“Guy Westmoreland made no statement whatsoever to

police when arrested in connection with the murder of

Debra Abeln.”); id. at Ex. C (3/10/2004 R. Westmoreland

Affidavit) (“Marty said that on the morning of

Guy Westmoreland’s arrest, he or Kale Jackson, a FBI

agent, had NOT gotten any type of statement from

Guy Westmoreland, in fact he ‘lawyered up.’ They

couldn’t get him to talk to them at all.”).

Again, to satisfy the standard for newly discovered

evidence, Westmoreland must show that the evidence:

(1) was discovered after trial; (2) could not have been

discovered sooner with due diligence; (3) was material

and not simply impeaching or cumulative; and (4) if

presented at a new trial, would probably result in
No. 10-3961 15

Westmoreland’s acquittal. See Hagler, 700 F.3d at 1101.

The Korris and Renee Westmoreland affidavits fail

every prong of this test.

First, even if the evidence of what Milkovich said

might have been new, Westmoreland’s own statements

at the time of his arrest could not have been “newly

discovered” to Westmoreland. He was there and knew

what he said or did not say at the time. Second, the evidence must be admissible to be material, and Milkovich’s

statements to Korris and Renee Westmoreland about

what Westmoreland said would be inadmissible hearsay as proof of what Westmoreland said or did not say.

Third, even if admitted, the statements would have

served at most only to impeach the testimony of Master

Sergeant Calvin Dye of the Illinois State Police, who

did testify at Westmoreland’s murder trial. Sergeant Dye

was with Milkovich when Westmoreland was arrested,

and he testified consistently with Milkovich’s original

statement. Fourth, it is unlikely that this evidence, had

it been admitted, would have led to Westmoreland’s

acquittal. The case against Westmoreland was very

strong, and the new evidence was weak. By the time of the

murder trial, Milkovich’s credibility was non-existent,

and Dye’s testimony was directly contrary on the subject. We reject Westmoreland’s argument that the Korris

and Renee Westmoreland affidavits amount to newly

discovered evidence entitling him to a new trial.

IV. Sixth Amendment Claims

Westmoreland contends that his Sixth Amendment

rights were violated in two ways. First, he submits that
16 No. 10-3961

his right to a speedy trial was violated by the district

court’s excessive delay in ruling on his motion for a new

trial. Second, he argues that his right to counsel was

violated. As troubling as the long delay in deciding the

motion was, we find no reversible error on either ground.

A. Delayed Denial of Motion for New Trial

Westmoreland filed his motion for a new trial on

October 4, 2002. His direct appeal was pending, and his

motion was filed as a supplement to his appeal. He

was represented by counsel at the time, but he prepared

his motion for a new trial pro se. His lawyer filed

Westmoreland’s motion with the district court as a courtesy and described his action in a cover letter: “Although

fashioned as an appellate brief, Mr. Westmoreland would

like the pleading to be treated as a motion for [a] new trial

based on newly discovered evidence, under Fed. R. Crim.

P. Rule 33.” 

On January 22, 2003, the district court construed

Westmoreland’s October 4 papers as a Rule 33 new trial

motion and ordered the government to file a response

within 20 days. The court’s order noted that after the

court received the government’s response, it would

determine whether “an evidentiary hearing is required

for resolution of the motion.”

On February 4, 2003, Westmoreland filed a motion

for appointment of counsel and for a stay of the proceedings. The next day, he moved to stay the proceedings

in the district court pending an interlocutory appeal re-
No. 10-3961 17

garding the district court judge’s refusal to recuse himself. Westmoreland’s request for a stay was granted

on February 18, but his appeal was dismissed the next day.

More than a year later, on April 26, 2004, Westmoreland filed a “Supplement to Statement of Facts, in Light

of Additional Newly Discovered Facts.” On May 12,

2004, August 18, 2004, and September 22, 2004, the government filed requests for extensions of time to respond

to Westmoreland’s pending motions. The record does not

reflect whether the last of these requests was granted.

In the meantime, Westmoreland filed a motion for

sanctions against the government, arguing that its continued delays had prejudiced him. He argued that the

federal rules “are designed to promote justice and prevent

delay,” that “[a]ny further delay will be highly prejudicial

to Westmoreland,” and that he “has been and is being

severely prejudiced by the United States’ behavior in this

case and Rule 11 sanctions should be imposed on the

United States accordingly.”

The government ultimately filed its response to

Westmoreland’s new trial motion on September 29,

2004. Westmoreland filed his reply on December 1. On

December 7, 2004, Westmoreland supplemented his

pleadings with excerpts from the administrative

hearing transcripts related to the Illinois State Police

Department investigation into the Milkovich affair

with Bronnie Westmoreland.

By 2008, however, the district court had not ruled on

any of the pending motions. In February of that year,

Westmoreland filed a “Motion for Determination of
18 No. 10-3961

Status on Defendant’s Rule 33 Motion.” Still, nothing

happened. At long last, the district court denied

Westmoreland’s motion for a new trial and his motions

to appoint counsel on December 13, 2010 — more than

eight years after his original motion and six years after

the government’s response. The district court’s denial

addressed the substance of Westmoreland’s motions

but did not comment on or explain this extended delay.

Westmoreland argues that the district court’s delay in

ruling on his motion for a new trial violated the Sixth

Amendment’s promise of “the right to a speedy and public

trial.” Both the accused and society as a whole have an

interest in prompt resolution of criminal proceedings. See

Barker v. Wingo, 407 U.S. 514, 519-20 (1972). Faded memories and lost evidence may impair a defendant’s ability to

defend himself if too much time passes between the

accusation and the trial. See id. at 521. Delay may also

exacerbate a defendant’s anxiety and unnecessarily drain

a defendant’s financial resources. See Moore v. Arizona,

414 U.S. 25, 27 (1973).

Our cases, however, have not addressed whether

the right to a speedy trial attaches to a post-trial motion

for new trial. The Tenth Circuit, in United States v.

Yehling, 456 F.3d 1236, 1243 (10th Cir. 2006), reasoned

that because concerns calling for a speedy trial also

apply to motions for a new trial based on newly discovered evidence, it would apply the speedy trial analysis. In doing so, it held that a four-year delay in denying a motion for a new trial did not violate the

Sixth Amendment. We need not decide whether we
No. 10-3961 19

agree with the Tenth Circuit that the speedy trial right

attaches to a motion for a new trial. Even if we assume

that the right attached, Westmoreland cannot show

that such a right was violated.

A Sixth Amendment speedy trial claim turns on the

following general factors: “whether delay before trial

was uncommonly long, whether the government or the

criminal defendant is more to blame for that delay,

whether, in due course, the defendant asserted his right

to a speedy trial, and whether he suffered prejudice as

the delay’s result.” Doggett v. United States, 505 U.S. 647,

651 (1992); see also United States v. White, 443 F.3d 582,

589 (7th Cir. 2006). Although Westmoreland is able to

satisfy some of the factors with respect to his motion for

a new trial, he cannot show prejudice — which, because

he was convicted, must be “substantial” and “demonstrable.” Yehling, 456 F.3d at 1245, quoting Perez v.

Sullivan, 793 F.2d 249, 256 (10th Cir. 1986). This claim

therefore fails.

The first factor, an uncommonly long delay, “is not so

much a factor as it is a threshold requirement.” United

States v. Loera, 565 F.3d 406, 412 (7th Cir. 2009). Delays

approaching one year are “presumptively prejudicial,”

White, 443 F.3d at 589-90, and the district court’s delay

here was uncommonly long. We recognize that district

courts face challenging caseloads and that some reasonable delays are inevitable. In this case, however, the

district court failed to take any substantive action on

Westmoreland’s motion for eight years and has offered

no explanation for its delay. This delay was plainly ex-
20 No. 10-3961

cessive and, on this record, unexplained. We are unable

to discern a reason for it from the post-verdict docket

in this case, which does not appear to be unusually

busy or complex. We also cannot rely on the district

court’s explanation, for the court gave none. Without

more, though, even this unacceptably excessive delay

is not sufficient to establish prejudice and to require

that the murder convictions be set aside.

When we analyze the prejudice element of a constitutional speedy trial claim, we ordinarily weigh three

interests: (1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the accused; and (3) limiting the possibility that the defense

will be impaired. See Barker, 407 U.S. at 532. When

Westmoreland filed his motion for a new trial he had

already been convicted of a successful conspiracy to

commit murder and had been sentenced to serve the rest

of his life in prison. When the district court finally reviewed his motion for new trial, it found that the

motion had no merit, a finding with which we agree.

Given this posture, we must reject Westmoreland’s

arguments. He argues that he was prejudiced by the

eight years that he suffered anxiety and worry while

waiting for resolution of his motion for new trial. But

Westmoreland’s motion for new trial did not challenge

his conviction and concurrent 240 month sentence for

the drug conspiracy. Thus, while he waited for a ruling

on his motion for new trial, he was not incarcerated

any longer than he would have been otherwise, and we

are not persuaded that any additional anxiety or worry

because of the district court’s delayed ruling requires
No. 10-3961 21

that he be exonerated for the murder. Once he was convicted and sentenced and his conviction and sentence

had been affirmed on appeal, his incarceration and any

resulting anxiety or worry resulted from his crimes,

not from delay in deciding his motion for a new trial.

Westmoreland also argues that he was prejudiced by

the delay because it became difficult to preserve documentary evidence and witness testimony over that time,

and that while he waited for his ruling, his co-defendant

(Abeln) committed suicide. Again, Westmoreland had

been convicted and his convictions affirmed. His trial

defense had not been impaired. Abeln’s later suicide

did not affect Westmoreland’s post-conviction proceedings. Westmoreland does not suggest that if Abeln

had lived, he would have recanted his inculpatory

trial testimony or would have provided any other exculpatory evidence. The arguments raised in the motion

for a new trial regarding new evidence lacked merit.

Westmoreland was not prejudiced by his inability to

preserve evidence to support a meritless motion. While

we do not condone the delay, without a showing of

prejudice the wait Westmoreland endured while his

motion for a new trial was pending could not have

amounted to a violation of his Sixth Amendment right

to a speedy trial warranting dismissal of the charges

on which he was convicted.

B. Right to Counsel

Finally, Westmoreland argues that he should receive

a new trial because his right to counsel was violated.

Westmoreland was represented by counsel in his direct
22 No. 10-3961

appeal. While that appeal was pending he filed his pro se

motion for a new trial. The document that was filed,

although filed with the district court as a new trial

motion and treated as such, was captioned to be filed

in this court as a “Pro Se Supplemental Brief” to

Westmoreland’s direct appeal.

The record reveals that Westmoreland wanted his

lawyer to present the arguments within his “Pro Se Supplemental Brief” on direct appeal, but his lawyer refused. Instead, his attorney submitted Westmoreland’s

motion to the district court, but did so only as a “courtesy”

to Westmoreland. See Dkt. 890 at i (Motion for New

Trial, styled as “Pro Se Supplemental Brief” to Westmoreland’s direct appeal) (“The issues presented herein

are based on newly discovered evidence that is worthy

of this Court’s attention and review. However, the Defendant/Appellant’s court appointed counsel . . . refuses

to present these issues to this Court for review.”);

Dkt. 899 Ex. A (counsel’s cover letter to court), Ex. B

(Westmoreland’s letter to counsel) (“I am requesting (as

I did in July) that you file a [motion for new trial] based

on the newly discovered evidence that I sent you in

July 2002. I am entitled to effective assistance of counsel

to present these claims upon newly discovered evidence

and therefore, I am asking you to take notice of this

constitutionally protected right consistent with current

7th Circuit precedent per Kitchen v. United States,

227 F.3d 1014 (7th Cir. 2000).”).

While his motion for a new trial was pending,

Westmoreland filed two motions for appointment of

counsel. He filed his first on February 4, 2003. He
No. 10-3961 23

renewed that motion on December 2, 2004, noting in

his filing that “[t]his case is getting more and more complicated and difficult for Defendant to manage,” and

stating “[a]s this Court is aware, Defendant suffers

mental impairment [sic] and is relying solely

on ‘jail-house lawyers’ and family to proceed with the

investigation and manage the litigation. Defendant is

incompetent to do so alone.” The district court denied

these requests without comment when it denied Westmoreland’s motion for a new trial. See Westmoreland,

2010 WL 5141770, at *7. Westmoreland contends that

the district court’s denial violated his Sixth Amendment

right to counsel. He asserts that because he was denied

counsel for his new trial motion, he should be granted

a new trial. Although we agree that Westmoreland’s

right to counsel attached to his motion, we conclude

that the district court did not violate that right.

As Westmoreland noted in his letter to his lawyer,

this situation is similar to that presented in Kitchen v.

United States, 227 F.3d 1014 (7th Cir. 2000). Kitchen filed

a motion for new trial while his direct appeal was

pending, presenting evidence that he argued was newly

discovered. Unlike this case, though, Kitchen’s appeal

was stayed while his motion for new trial was decided.

When his new trial motion was denied, his counsel neglected to file a notice of appeal from the denial, precluding appellate review. Kitchen then filed a motion

under 28 U.S.C. § 2255 arguing that he had been denied

his right to effective assistance of counsel when his

trial/appellate counsel failed to file a notice of appeal

from the denial of his motion for a new trial. Id. at 1017.
24 No. 10-3961

We faced the following questions: (1) whether Kitchen

had a right to counsel for his pre-appeal motion for a

new trial; (2) whether his counsel’s failure to file a notice

of appeal was deficient performance; and (3) whether

Kitchen was entitled to a presumption of prejudice or,

if not, whether he had shown prejudice. Id.

Addressing the first issue, we held that Kitchen had

a right to counsel for his pre-appeal motion for a new

trial. The Sixth Amendment right to counsel extends to

all “trial-like confrontations” connected to a criminal

prosecution. See United States v. Ash, 413 U.S. 300, 311-

12 (1973); Kitchen, 227 F.3d at 1018 (“[O]nce a defendant’s right to counsel attaches, the right continues

to apply ‘at every stage of a criminal proceeding

where substantial rights of a criminal accused may be

affected.’ ”), quoting Mempa v. Rhay, 389 U.S. 128, 134

(1967). A criminal defendant has the right to counsel

through his first appeal of right, but once that appeal

has been decided, the right no longer applies. See

Kitchen, 227 F.3d at 1018, citing Pennsylvania v. Finley,

481 U.S. 551, 557 (1987); Evitts v. Lucey, 469 U.S. 387, 396

(1985); Ross v. Moffitt, 417 U.S. 600, 607 (1974). Because

Kitchen’s motion was filed after the criminal proceedings

had been initiated against him but before his direct

appeal had been decided, we held that his right to

counsel attached to his motion for a new trial. See

Kitchen, 227 F.3d at 1018-19. Westmoreland also filed

his motion after criminal proceedings against him

had been initiated but before his direct appeal was decided. Thus, like Kitchen, Westmoreland had a right

to counsel for his motion for new trial.
No. 10-3961 25

But the analysis does not end there. Yes, Westmoreland

had a right to counsel, but Westmoreland had counsel. He

asked his counsel to represent him in his pursuit of a

new trial, but his counsel refused. It is well established

that a defendant’s right to counsel does not give him a

right to force his counsel to make every possible nonfrivolous argument that could be made on his behalf.

See Jones v. Barnes, 463 U.S. 745, 751 (1983) (“Neither Anders

[v. California, 386 U.S. 738 (1967)] nor any other decision

of this Court suggests . . . a constitutional right to

compel appointed counsel to press nonfrivolous points

requested by the client, if counsel, as a matter of professional judgment, decides not to present those points.”).

Westmoreland’s argument therefore is better understood not in terms of a denial of counsel but as an argument that his counsel’s refusal to pursue the arguments

in his motion for a new trial amounted to ineffective

assistance of counsel. The fact that Westmoreland’s

arguments, when they were heard, were heard as part

of his pro se motion for a new trial does not permit him

to reframe an ineffective assistance of counsel claim as

a complete denial of counsel. Thus, to prevail, Westmoreland must satisfy the requirements of Strickland

v. Washington, 466 U.S. 668, 687 (1984). Under Strickland, Westmoreland must show that his counsel’s performance was deficient, meaning that it was unreasonable

under prevailing professional norms. If he could make

that showing, he would also have to show that he was

prejudiced by the deficiency.

Though the record is not well developed on this

point, we doubt that Westmoreland’s counsel’s decision
26 No. 10-3961

to refuse to pursue Westmoreland’s arguments in

favor of a new trial was anything other than a

reasonable strategic choice. But even if Westmoreland

were somehow able to overcome that hurdle, he has

not shown prejudice. His argument is that he was prejudiced because his motion for new trial had merit.

Those arguments have now been developed on appeal

by highly capable appointed counsel. We have examined those arguments and affirm the district court in

finding that a new trial was not warranted. Without a

meritorious argument for a new trial, Westmoreland

cannot show prejudice, and without prejudice, he cannot

show that his counsel’s performance was deficient in

refusing to present his arguments. Accordingly, whether

fashioned as an ineffective assistance of counsel claim

or as a right to counsel claim, his claim still fails.

AFFIRMED.

3-25-13