Tenth rejects arguments concerning gov't actions regarding alleged conflict of interest, sleeping jurors, and obstruction enhancement

U.S. v. McKeighan, 2012 WL 2898670 (7/17/12) (Kan.) (Published) - While recognizing the potential for the prosecution to abuse its powers to create a conflict of interest, the government did not do so in this case when it notified the d. ct. of a potential conflict of interest in out-of-state defense counsel's representation. After his arrest, the drug defendant indicated he had no money. Yet he retained counsel for a total of $25,000, which his girlfriend obtained from defendant's friend in cash bound in rubber bands. Counsel did not give her receipts. The girlfriend thought the fee payments were suspicious. The government didn't cause counsel to withdraw. Rather, local counsel withdrew because of a perceived conflict of interest and out-of-state counsel could not get another local counsel to sponsor him. The jury's acquittal of the defendant on the money laundering charge, which related to the attorney fee matter, did not prove the illegitimacy of the government's concern about a conflict. Nor did the d. ct. engage in misconduct in this regard. It didn't force counsel to withdraw. The d. ct. could not be faulted for placing the fee in the court registry when it was counsel who suggested it do so. The d. ct.'s allowance of the government's sealed ex parte submission gave the 10th "some pause," but the d. ct. was prepared to hold an evidentiary hearing on the matter when counsel withdrew on his own.
Sleeping jurors do not warrant a new trial, absent a showing of prejudice, i.e., that a juror missed large portions of the trial or particularly critical testimony. General assertions of jurors dozing doesn't cut it. In this case, the defense and the prosecution notified the d. ct. a number of times that jurors were nodding off or shutting their eyes. But the transcript did not show the jurors were actually asleep. The d. ct. kept an eye on one of the offending jurors and declared: "every time a juror closes their eyes we can't presume they are sleeping." Counsel never claimed prejudice during trial and never asked for an investigation or substitution of jurors. The defendant on appeal did not identify what portions of the trial the jurors slept through.
The evidence supported an obstruction of justice sentencing guidelines enhancement where evidence indicated the defendant instigated a witness signing a note that said most of the items in a storage unit belonged to the witness's girlfriend. Those items were drugs and guns that were the subject of the charges against the defendant. It didn't matter that the note was never introduced into evidence. An attempt to influence the proceedings is enough.