United States of America v. Eric E. Garvey

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3088
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ERIC E. GARVEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 10-CR-134—William M. Conley, Chief Judge.
ARGUED JUNE 4, 2012—DECIDED AUGUST 3, 2012
Before KANNE, WOOD, and TINDER, Circuit Judges.
KANNE, Circuit Judge. Beginning in 2007, Eric E. Garvey
conspired with four others to transport and sell stolen
property along the Minnesota-Wisconsin border. At
Garvey’s trial, all four co-conspirators testified against
him. On appeal, Garvey alleges that the district court’s
misstatement of its subpoena power prevented him
from calling a witness to impeach one of those co-con-
spirators. Garvey also claims that the district court erred

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2 No. 11-3088
in denying his motion for a mistrial after the prosecu-
tor’s questioning prompted a witness to declare that
he smoked marijuana with Garvey. For the following
reasons, we affirm Garvey’s conviction.
I. BACKGROUND
From July 2007 to February 2009, Garvey and four co-
conspirators engaged in a scheme to steal lawnmowers,
tractors, trucks, ATVs, snowmobiles, and trailers along
the Minnesota-Wisconsin border and then transport
and sell these stolen items to various buyers. Two of
Garvey’s co-conspirators, Toby Thomas and Jeff Olson,
were responsible for stealing the items. On the other end,
Chad Wyttenbach and Victor Trejo assisted in storing
and selling the stolen property. At various times, Garvey
was involved in stealing, transporting, and selling the
stolen items. Garvey was charged with one count of
conspiring to transport, possess, sell, and dispose of
stolen vehicles and goods in interstate commerce, in
violation of 18 U.S.C. §§ 2, 371, and eight counts of theft,
transportation, or sale of specific stolen vehicles or
goods in interstate commerce, in violation of 18 U.S.C.
§§ 2312-15.
All four co-conspirators pled guilty and agreed to
testify against Garvey at trial, but for purposes of this
appeal, we need only discuss the testimony of Wytten-
bach and Thomas. Wyttenbach bought stolen John Deere
lawnmowers and tractors from Garvey and sold them
to four separate buyers. Wyttenbach testified that he
gained neither profit nor anything else of value from

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No. 11-3088 3
During cross-examination, Garvey’s counsel asked 1
Wyttenbach if he sold the small lawn tractor to Hoopman
for profit, but Wyttenbach denied doing so.
these transactions. One of his buyers was Justin
Hoopman. Wyttenbach arranged for Hoopman to pur-
chase a small lawn tractor from Garvey for $2,000.
Wyttenbach transported the tractor to Hoopman’s resi-
dence and left Hoopman’s payment at an arranged place
for Garvey to retrieve.
On cross-examination, Garvey’s counsel impeached
Wyttenbach by pointing out several glaring incon-
sistencies between his testimony and statements he gave
to police officers during their investigation. Garvey’s
counsel also questioned Wyttenbach’s motive to pro-
tect himself and his friends, especially in light of the
officers’ increasing threats about the potential conse-
quences Wyttenbach faced for his own unlawful acts.
Wyttenbach freely admitted that he tried to down-
play his role and lied to police officers on more than
one occasion.
Garvey’s counsel had also planned to call Hoopman
as an impeachment witness. According to Garvey,
Hoopman would have testified that Wyttenbach
requested $5,000 for the small lawn tractor, contrary to
Wyttenbach’s testimony that he never profited from
the scheme. Unfortunately for Garvey, Hoopman had1
not yet been served with a subpoena on the Friday
before Garvey’s trial was to begin on Monday. Upon
learning of this problem on Friday, the district judge
stated that Garvey could not subpoena Hoopman in

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4 No. 11-3088
any event because Hoopman, who resided in Connecti-
cut, fell outside of the court’s one-hundred-mile juris-
diction for subpoenas. On Monday morning, the district
judge corrected himself, informing counsel that his sub-
poena power was nationwide and Garvey was free to
attempt to subpoena Hoopman again. Hoopman was
eventually served on Wednesday but did not testify and,
therefore, could not impeach Wyttenbach’s testimony.
Co-conspirator Thomas testified against Garvey on the
second day of trial. Prior to trial, the district court
granted a motion in limine preventing the government
from introducing any evidence of Garvey’s drug use
or sales. Thomas was specifically admonished not to
mention any drug use or transactions. Despite these
instructions, Thomas testified:
Q: In May of 2007, were you associating with
Mr. Garvey?
A: Yeah, I believe so.
Q: And what sort of things were you doing
with him at that time?
A: Oh, we got together and smoking [sic] weed.
(Trial Tr. at 2-P-91.) Garvey’s counsel objected and the
district judge instructed the jury, “any reference to any
activities of that kind have no place in this matter and
the jury should disregard that last reference.” Id. Garvey’s
counsel thereafter moved for a mistrial. The court stated:
I think it was an unfortunate occurrence. I didn’t
want to dwell on it. If you want a curative instruction

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No. 11-3088 5
at some point, I will give it. . . . I am very disappointed
that the witness blurted that out. I had hoped it was
made abundantly clear to him it was not an appro-
priate discussion, but this is not the time to address
it and so I would ask counsel to step back at this
time and we can address it at a break.
Id. at 2-P-93-94. At the end of the day, the government
informed the court that it had instructed Thomas not to
mention drugs and his response was unexpected. The
district judge noted that everyone was surprised, but he
would not “grant a mistrial based on a single state-
ment unrelated to the activities of this trial.” Id. at 2-P-162.
He further explained:
Frankly, given the amount of testimony of far
more heinous conduct, I can’t imagine that the
fact that at some point this witness smoked mari-
juana with the defendant would have tainted
the jury’s ability to listen to the evidence and
decide it. It defies credibility that that would be
the case, but a record has been made.
Id. at 2-P-162-63. Although the court offered to give an
additional limiting instruction, Garvey’s counsel did not
request one.
Over the course of the four-day trial, the government
called thirty-one witnesses and presented phone records
which demonstrated frequent interaction among Garvey,
his co-conspirators, and the buyers during the relevant
time periods. The jury convicted Garvey on six of the
nine counts. Garvey was sentenced to sixty months’
imprisonment on the conspiracy count and ninety

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6 No. 11-3088
During the Friday conference, the judge stated that his 2
jurisdiction only extends one hundred miles for service of a
subpoena. This is the civil subpoena power, as stated in
(continued...)
months’ imprisonment on the remaining counts, to run
concurrently with each other. Garvey filed this timely
appeal.
II. ANALYSIS
A. Hoopman Subpoena
Garvey first alleges that the district court’s misstate-
ment of its subpoena power denied him his Sixth Amend-
ment right to call witnesses on his behalf. Because
Garvey did not raise this issue below, we review for
plain error. See United States v. Peugh, 675 F.3d 736, 740 (7th
Cir. 2012). Under this standard, we determine whether
there was “(1) an error, (2) that was plain, meaning clear
or obvious, (3) that affected the defendant’s substantial
rights in that he probably would not have been
convicted absent the error, and (4) that seriously affected
the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Christian, 673 F.3d 702,
708 (7th Cir. 2012).
The Sixth Amendment guarantees a defendant the
right to present his own witnesses to establish his
defense. Taylor v. Illinois, 484 U.S. 400, 409 (1988). Garvey
alleges that the district court’s initial misstatement of
its subpoena power was plain error resulting in the2

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No. 11-3088 7
(...continued) 2
Federal Rule of Civil Procedure 45(b)(2)(B). In criminal pro-
ceedings, however, “[a] subpoena requiring a witness to
attend a hearing or trial may be served at any place within
the United States.” Fed. R. Crim. P. 17(e)(1).
denial of this right. Had the district court properly stated
its subpoena jurisdiction in the Friday conference,
Garvey would have had an additional weekend to serve
Hoopman and present his testimony at trial.
Garvey acknowledges that Hoopman’s testimony
would have been presented solely for impeachment
purposes. He argues that because the government placed
so much reliance on Wyttenbach’s testimony to convict
Garvey, Hoopman’s testimony was crucial because it
demonstrated that Wyttenbach lied and played a bigger
role than he let on. This, in turn, would have cast doubt
on Garvey’s role in the conspiracy. But we believe
Garvey overstates the value of Hoopman’s testimony.
Garvey’s counsel thoroughly impeached Wyttenbach
during trial. Wyttenbach admitted that he lied to police
and downplayed his role in the conspiracy to protect
himself and his friends. Thus, any impeachment testi-
mony by Hoopman would have been cumulative.
Further, we are not convinced that the extent of
Wyttenbach’s role in the conspiracy necessarily bears
on Garvey’s own unlawful conduct. The district court
on more than one occasion questioned whether Hoop-
man’s testimony was material to Garvey’s defense. Ac-
cordingly, even if the district court did plainly err in
misstating its subpoena power, Garvey cannot establish

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8 No. 11-3088
that his substantial rights were affected such that he
probably would not have been convicted.
B. Drug Use Testimony
Garvey also challenges the district court’s denial of
his motion for mistrial after Thomas testified that
he smoked marijuana with Garvey. Given the highly
prejudicial nature of testimony regarding drug activity,
the jury’s mixed verdict, and the fact that the case was
entirely unrelated to drug charges, Garvey believes the
motion should have been granted. We review the denial
of a mistrial for an abuse of discretion. United States
v. Powell, 652 F.3d 702, 709 (7th Cir. 2011). A mistrial
is appropriate when “an event during trial has a real
likelihood of preventing a jury from evaluating the evi-
dence fairly and accurately, so that the defendant has
been deprived of a fair trial.” Id. (quoting United States
v. Tanner, 628 F.3d 890, 898 (7th Cir. 2010)).
Garvey’s request for a mistrial was based on a singular
statement made by Thomas, in which he stated “Oh, we
got together and smoking [sic] weed.” (Trial Tr. at 2-P-91.)
Following this statement, defense counsel immediately
objected. The district court sustained the objection, ad-
monished the jurors not to consider Thomas’s state-
ment, and offered to provide an additional limiting
instruction, which defense counsel declined. “[J]urors
are presumed to follow limiting and curative instruc-
tions unless the matter improperly before them is so
powerfully incriminating that they cannot reasonably
be expected to put it out of their minds.” United States v.

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No. 11-3088 9
Smith, 308 F.3d 726, 739 (7th Cir. 2002). Thomas’s isolated
statement that he smoked marijuana with Garvey was
brief, “unadorned with additional details,” and not so
“powerfully incriminating” as to prevent the jurors from
following the district court’s instruction, which was
prompt and appropriate. See id. Accordingly, Garvey
cannot overcome the presumption that jurors obey
the instructions given to them. The district court did
not abuse its discretion in denying Garvey’s motion
for mistrial.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of
the district court.
8-3-12

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