United States of America, Plaintiff-Appellee,
v.
Andrew ("Bay-Bay") Patterson, Robert Patterson, Henry Patterson, Andrew L. ("Maine") Patterson, Tyrone Williams, Andre Williams, Durwin Baker, Terry Clark, Willie Connor, Maurice Foster, Gregory Hubbard, Jerry Patterson, Lennell Patterson, Odell Sumrell, and Edgar Williams, Defendants-Appellants.
Nos. 97-3132, 97-3159, 97-3163, 97-3480, 97-3666, 97-3683, 97-3697, 98-1066, 98-1265, 98-1310, 98-1981, 98-1991, 98-2362, 98-3115 & 98-3625
In the United States Court of Appeals For the Seventh Circuit
Argued February 15, 2000
Decided June 1, 2000
Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 95 CR 242--Robert W. Gettleman, Judge. [Copyrighted Material Omitted]
Before Posner, Chief Judge, and Easterbrook and Diane P. Wood, Circuit Judges.
Easterbrook, Circuit Judge.
Fifteen defendants appeal their convictions for drug-related offenses. Four of their confederates pleaded guilty and testified for the prosecution at the 20-week trial. More evidence came from tape recordings of incriminating conversations. The jury was entitled to conclude that all 15 appellants were affiliated with the Traveling Vice Lords street gang. Andrew "Bay-Bay" Patterson, one of the gang's "five-star universal elites," was defendants' leader. We use the street name "Bay-Bay" because eight Pattersons were among the defendants, and Bay-Bay's nephew "Maine" Patterson shares the given name "Andrew." Bay-Bay supplied the drugs, while his brothers Robert and Henry supervised their distribution. The operation lasted at least a decade and during its best years grossed more than $40,000 a day in retail sales. Sentences are correspondingly high: the shortest term for any appellant is 210 months' imprisonment, and three of the appellants, including Bay-Bay and Robert, were sentenced to life imprisonment. Because the arguments presented on appeal are self-contained, we omit further details.
* The district court used a struck-jury system to select the jurors. Members of the venire were screened, and some were excused for cause, until the court had a pool large enough to seat a jury and alternates, taking account of peremptory challenges. In a criminal case the defense is entitled to 10 challenges and the prosecution 6, Fed. R. Crim. P. 24(b), plus up to 3 more to be exercised against alternates, Rule 24(c)(2), and in a multi-defendant case the district court may award extra challenges. It did so here, granting the defendants (collectively) 20 and the prosecutor 12, plus 2 apiece for alternates. Because the judge planned to seat 12 jurors and 8 alternates, the pool had to contain 56 persons, to ensure that if all peremptory challenges were exercised (and the prosecution and defense never challenged the same person) 20 persons would be left. After the initial screening for cause, 63 members of the venire remained, and the district judge put all 63 into the pool for the exercise of peremptory challenges (and any belated challenges for cause). The judge decided not to establish a priority within this pool. All 63 had an equal chance of serving. After peremptory challenges were exercised, some adjustments were made (the judge granted additional challenges because some strikes overlapped), and 31 persons remained, the clerk shuffled the juror cards and drew 12 to be the jurors. Then each side exercised 2 challenges against the residual pool of 19, the clerk shuffled the remaining cards, and 8 alternates were drawn.
Defendants objected to this procedure (and to avoid parsing who objected to what, we treat everyone as objecting to everything). They wanted to know the sequence in which members of the pool would be called to sit on the jury, so that they could concentrate their challenges on those persons most likely to serve. As the district court organized matters, however, every member of the pool was equally likely to sit, so the defense could not target challenges strategically. Moreover, the extra members in the pool diluted the utility of each challenge by the ratio 56/63. The 20 challenges that the defendants initially were allotted had the same practical effect with a 63-person pool as 18 challenges would have had with a 56- person pool. The pool's extra size effectively deducted 2 challenges.
All members of the jury actually seated in the case were impartial. Still, defendants insist that the convictions must be reversed, because they were unable to make the best of their peremptory challenges. As defendants see it, the district judge committed at least four errors in the jury-selection process:
The court created a pool of 63 venire members, instead of the 56 that would exactly equal the number of jurors needed plus the number of challenges. United States v. Ricks,
The judge did not list the pool's members in order, which defeated defendants' efforts to target the persons who were most likely to serve. United States v. Underwood,
Although Fed. R. Crim. P. 24(c)(1) provides that a "court may empanel no more than 6 jurors, in addition to the regular jury, to sit as alternate jurors," the district judge decided to select 8 alternates. This diluted the effectiveness of the peremptory challenges available to remove potential alternate jurors.
Although Fed. R. Crim. P. 24(c)(2) provides that defendants receive 3 additional peremptory challenges when the district judge seats 5 or 6 alternates, the judge in this case allowed only 2 extra challenges for 8 alternates--a 1-to-4 ratio, instead of Rule 24(c)'s 1-to-2 ratio.
None of these events calls into question the impartiality of the jury eventually selected, which makes it hard to see why there is any real problem. United States v. Martinez-Salazar,
What led to reversal in Underwood was an ambiguity in the district judge's jury- selection protocol that led the defendants to misunderstand the sequence in which members of the pool would be seated on the jury. That misunderstanding led the defendants not to challenge two persons who they thought were so far back in the order that they were unlikely to be seated, but who actually served. If an ambiguity that affected two challenges is reversible error, then failure to establish any sequence, a step that potentially affected all 20 challenges, must be error too. However logical that argument may be, Underwood is no longer authoritative after Martinez-Salazar. Our views in Underwood reflected the belief that defendants are entitled to make maximum strategic use of their peremptory challenges. That same conception of defendants' entitlements led the ninth circuit to hold that "losing" a peremptory challenge in order to remove a juror who should have been excused for cause is reversible error. United States v. Martinez-Salazar,
Formally, at least, the district judge's handling of alternates is more problematic. Rule 24(c)(2) grants 3 extra challenges for 6 alternates; the district judge allowed 2 extra challenges for 8 alternates. This looks like a reduction in the number of challenges provided by the rule, something that did not happen in Martinez-Salazar. Appearances may deceive, because everyone in the pool of potential alternates had passed the first wave of peremptory challenges. Any extra challenges provided for the selection of alternates meant that the defendants (and the prosecutor) had a higher ratio of challenges to alternates than of challenges to principal jurors. Rule 24(c)(2) assumes that jurors will be selected either by the jury-box system or by a struck-jury method in which defendants know the sequence in which members of the pool will be seated. When the sequence is known, defendants concentrate their challenges on venire members at the front of the queue; Rule 24(c)(2) provides extra challenges for the selection of alternates because otherwise defendants might have no peremptories left when the time arrives to pick alternates. Because the peremptory challenges exercised against the pool of 63 were as likely to excuse would-be alternates as to excuse would-be regular jurors, there was no need for a second allotment of challenges. But the Rule provides for them anyway, and it was violated. Defendants argue for automatic reversal. Once again Martinez-Salazar leads to a different approach.
Underwood drew its rule of automatic reversal from the statement in Swain v. Alabama,
Relying on language in Swain v. Alabama,
Peremptory challenges come from Rule 24, and Rule 52(a) adds: "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." See also 28 U.S.C. sec.2111. Martinez-Salazar makes it clear that peremptory challenges do not have an independent constitutional source; their provenance is statutes and rules. 120 S. Ct. at 779. See also Ross,
Defendants respond that an error concerning a peremptory challenge always affects a "substantial" right. A right is "substantial" when it is one of the pillars of a fair trial. Trial before an orangutan, or the grant of summary judgment against the accused in a criminal case, would deprive the defendant of a "substantial" right even if it were certain that a jury would convict. Sullivan v. Louisiana, 508 U.S. 275, 279 (1993). For the same reason, a biased tribunal always deprives the accused of a substantial right. Bracy v. Gramley,
McDonough Power Equipment, Inc. v. Greenwood,
In any given situation there remains the possibility that a blunder affects a right that is substantial in the sense of Kotteakos v. United States,
II
Customers were reluctant to approach defendants' distribution outlets while police were visible. Officer Robert Drozd, in particular, gave the operation trouble. One day in 1991 Drozd, seeing more than 30 cars queued up for service at the gang's "spot," began waving the drivers to get under way. Henry Patterson complained: "Bob, you're killing us." When Drozd feigned ignorance about the meaning of this comment and the purpose of the cars in the street, Henry offered: "Can we do something?" Again Drozd played dumb, and Henry continued: "Well, can I give you a gun?" Drozd agreed to this bribe, and 20 minutes later he was directed to an alley from which he retrieved a sawed-off shotgun. Thus began a course of dealing in which Drozd caused trouble, one or more of the defendants offered a gun, and after picking up his reward Drozd left. Usually the Pattersons told Drozd where to find a weapon, but sometimes a hand-to-hand exchange was made. Drozd reported these bribes to federal officials. Nine of the 15 appellants were involved in the guns-for- protection deals and were convicted of violating 18 U.S.C. sec.924(c)(1), which makes it a crime to use or carry a firearm during and in relation to a drug trafficking offense.
Bailey v. United States,
III
Timothy S. Hearst, who represented Robert Patterson at trial, was not reliable. Many days he was late; others he did not appear at all. He missed seven days of Drozd's testimony, four of five sessions of the jury instruction conference, most of the other defendants' closing arguments, and proceedings to address notes from the jury during deliberations. He had a short legal career; admitted to practice in 1992, Hearst was disbarred in March 1999 for neglecting cases and converting clients' funds. But in post-trial proceedings, the district court concluded that Hearst furnished Robert with effective assistance of counsel--first because Hearst vigorously cross-examined the prosecution's witnesses and mounted a plausible defense (that there were multiple conspiracies and that Robert did not join the single conspiracy charged in the indictment), and second because it was impossible to show prejudice given the strength of the prosecution's evidence. The hearing on Hearst's conduct spanned three days. Rare is the claim of ineffective assistance that can be evaluated intelligently on direct appeal, but, because Robert's contentions have received the district judge's full consideration on a record the parties agree is complete, they are properly before us now. Guinan v. United States, 6 F.3d 468 (7th Cir. 1993). Moreover, the parties have agreed, in memoranda filed after the oral argument, that a remand for further hearings is not necessary or appropriate. We must evaluate Robert's contentions on the record as it stands.
Abandoning any argument that he suffered prejudice from Hearst's performance, Robert advances the more promising contention that for extended portions of the trial he just did not have any lawyer--and that deficiency violates the sixth amendment even if the defendant cannot establish a likely effect on the outcome. Satterwhite v. Texas, 486 U.S. 249, 256 (1988); United States v. Cronic,
But did he consent? Here is an exchange that the parties agree is typical:
THE COURT: Good morning, everyone. Please be seated. Everybody here, ready to go?
MR. PILOLLA: Mr. Hearst is not here. I am standing in for him.
THE COURT: Who is it?
MR. PILOLLA: Mr. Hearst.
THE COURT: Mr. Hearst. You are standing in for him, Mr. Pilolla?
MR. PILOLLA: I am. MS. MURDOCK: Does his client waive his presence?
THE COURT: Does Mr. Hearst's client waive his presence? Mr. Patterson?
DEFENDANT R. PATTERSON: Yes.
THE COURT: Thank you, sir.
The district judge did not ask Robert what he understood by "waiv[ing Hearst's] presence"--in particular, the judge did not inquire whether Robert understood the other options, and understanding one's options is an essential ingredient of waiver when the right at stake is counsel. See Johnson v. Zerbst, 304 U.S. 458 (1938). On another occasion the judge asked Robert whether he had "any objection" to "being represented by Mr. Aron" when Hearst was not present; Robert replied "Yeah, it's okay." The judge's abbreviated inquiries would have been adequate if Hearst's absences had been few or brief; virtual representation is common and proper in extended, multi- defendant trials. See United States v. Jackson,
Unfortunately the district court did not make the essential inquiry at trial, and in the post-verdict proceedings the prosecutor chose to let the issue slide. Counsel asked Robert: "Do you have an understanding as to what would happen if you didn't agree to these other lawyers standing in for your case?" Robert answered "No, sir." and the prosecutor did not follow up by cross-examination. Resources were at the prosecutor's disposal. The district judge remarked when denying Robert's motion for a new trial that although Robert often had to make do with a stand-in, on "other occasions when Mr. Hearst believed that he wasn't feeling well enough to carry on, we recessed the trial. It was late in the trial. At that point I was not going to declare a mistrial with respect to Mr. Patterson. I would rather have waited until Mr. Hearst felt better, which is exactly what we did." This implies that Robert had actual knowledge of his option to delay the trial until Hearst returned- -though perhaps the fact that the judge did not take this step until "late in the trial" means that Robert was uninformed when he consented earlier. But we need not pursue this subject, because the prosecutor did not pursue it. The United States allowed Robert's answer to stand unchallenged; we must assume that he did not know his options.
To say that Robert had the right to counsel does not necessarily mean that an irresponsible lawyer (or the defendant's ignorance of his entitlements) may bring a complex trial to a halt or force a severance. Hearst had been appointed, and the district judge could have elected to appoint a co-counsel or relieve him altogether. Perhaps that is the best way to understand what happened: the district court appointed some of the other defense lawyers as co-counsel for Robert. A defendant could not block that step just by saying that he preferred Hearst; when a court appoints counsel, it need not choose the lawyer the defendant prefers. Morris v. Slappy,
According to the memorandum the United States filed after oral argument, Robert forfeited any entitlement to protest the absence of an inquiry into conflicts (or the way other lawyers understood their obligation to protect Robert's interests) by not presenting evidence on these points at the hearing. That puts the burden in the wrong place. A judge who effectively appoints one lawyer to serve two clients must initiate inquiry on his own, see Russell, as the judge in this trial did not. Belated inquiry could have shown that the omission at trial was harmless, because there was no conflict, but the prosecutor did not raise the subject at the hearing. Nor do we think it possible to say that Robert forfeited the entire subject--not only because Hearst's absences were a major component of Robert's motion for a new trial (which should have alerted the prosecution to the need to develop evidence about possible conflicts) but also because the United States did not argue forfeiture in its appellate brief. It raised forfeiture for the first time in the memorandum submitted after argument, and by that delay it forfeited any right to assert Robert's potential forfeitures at an earlier stage.
One final possibility requires brief consideration. A defendant is entitled to counsel only at critical stages in the prosecution against him. If nothing that occurred during Hearst's absences was relevant to the charges against Robert, then perhaps he has not suffered a loss of counsel during a critical stage. Once again, however, this possibility has been forfeited by the United States--perhaps because it is so obvious that all of the evidence presented in a conspiracy prosecution counts against every defendant. We agree with the fifth circuit's conclusion in Russell that when the defendant's lawyer skips multiple days of a trial at which his client is accused of conspiring with other defendants, the accused does not effectively waive his right to counsel (or consent to vicarious representation by other defendants' lawyers), and the judge does not take the steps necessary to appoint replacement counsel or add co- counsel, the judgment must be set aside without any inquiry into prejudice.
IV
Tyrone Williams was acquitted of the only firearms charge brought against him, and he contends that this acquittal perversely increased his sentence. Calculated without regard to any firearms adjustments, Williams' sentence would have been in the range for offense level 41 and criminal history category VI. That range is 360 months to life. Had he been convicted of the weapons charge, a minimum of 60 months (which must run consecutively) would have been added, for a final sentencing range of 420 months to life. Because he was acquitted of "using or carrying" a gun, however, the district judge had to ask whether Williams or one of his partners in crime possessed a gun, a lower standard under U.S.S.G. sec.2D1.1(b)(1) than Bailey sets for conviction under sec.924. See United States v. Carmack,
Perhaps this is an appearance without substance. For many people, a sentence of 420 months (35 years) and a sentence of life imprisonment come to the same thing, given the defendant's age at the time of conviction. For young defendants, however, there may be a practical difference when the criminal behavior leads to a high offense level. Section 2K2.4 Application Note 2 establishes a sensible rule for the vast majority of defendants, because the mandatory five- year-minimum for a violation of sec.924(c) exceeds the effect of two offense levels. But when the offense level reaches 32 (at criminal history level VI) a two-level increase can lead to a more severe punishment than the minimum possible sentence under sec.924(c)(1).
The Constitution does not guarantee a completely rational system of sentencing. See, e.g., Chapman v. United States, 500 U.S. 453, 466-68 (1991); Neal v. United States,
Where a sentence under this section is imposed in conjunction with a sentence for an underlying offense, any specific offense characteristic for the possession, use, or discharge of an explosive or firearm (e.g., sec.2B3.1(b)(2)(A)-(F) (Robbery)) is not to be applied in respect to the guideline for the underlying offense. In a few cases, the offense level for the underlying offense determined under the preceding paragraph may result in a guideline range that, when combined with the mandatory consecutive sentence under 18 U.S.C. sec.844(h), sec.924(c), or sec.929(a), produces a total maximum penalty that is less than the maximum of the guideline range that would have resulted had there not been a count of conviction under 18 U.S.C. sec.844(h), sec.924(c), or sec.929(a) (i.e., the guideline range that would have resulted if the enhancements for possession, use, or discharge of a firearm had been applied). In such a case, an upward departure may be warranted so that the conviction under 18 U.S.C. sec.844(h), sec.924(c), or sec.929(a) does not result in a decrease in the total punishment. An upward departure under this paragraph shall not exceed the maximum of the guideline range that would have resulted had there not been a count of conviction under 18 U.S.C. sec.844(h), sec.924(c), or sec.929(a).
If the district judge would have given Williams a life sentence (one within the level 41 range without need for departure) had he been convicted of the firearms count, then the acquittal has not affected his sentence and he has no complaint. Similarly, the judge had discretion to avoid a sentencing inversion by departing downward. If, say, a conviction under sec.924(c) would have led the judge to select a sentence of 420 months for Williams (the bottom of the level 41 range, plus the consecutive 60 months), then perhaps the district court could have justified a downward departure to 400 months for simple possession (or being accountable for confederates' possession).
After reviewing the sentencing proceedings, we are unsure whether the district judge understood the extent of his discretion under sec.3553(b). We therefore remand Williams' sentence so that the district judge may consider his options. If the judge believes that life imprisonment is the best punishment, one he would have meted out without regard to conviction under sec.924(c), then the sentence stands. If the judge would have given a lesser sentence for the combination of a level 41 offense and a sec.924(c) conviction, however, then the judge should consider whether it is appropriate to depart downward, so that Williams' term falls in the range between 360 months' imprisonment and the sentence the judge would have meted out had the jury convicted Williams of the sec.924(c)(1) charge. Because this is an unusual case, the district judge has discretion either way; but the record must reveal that he understands and exercises that discretion. When taking up the issue a second time, the district judge should think it through afresh, rather than adopting a presumption in favor of the existing sentence.
Other issues have been considered but do not require discussion. The principal omitted contention--that the kind and quantity of drugs must be treated as elements of the offense under 21 U.S.C. sec.841 in light of Jones v. United States,
The conviction of Robert Patterson is reversed, and his case is remanded for a second trial if the United States chooses to pursue that option. The conviction of Tyrone Williams is affirmed, but we vacate his sentence and remand for resentencing. All other judgments are affirmed.