Case Information
*1 Before P OSNER T INDER , Circuit Judges , L AW RENCE , District Judge . [*]
P OSNER Circuit Judge
. convicted jury possession least grams cocaine intent distribute, sentenced months prison. His challenges conviction.
drug dealer. There bad blood between him and his nephew Andrew Wallace, and An drew, already paid DEA informant, informed the de fendant the agency. Agents fastened tiny audio/video recorder Andrew’s shirt, searched him and his car make sure had drugs, gave $1250, and sent him try buy crack cocaine from uncle. Watching the defen dant’s house from the street, the agents saw Andrew enter the house, leave between and minutes later, and get into car. drove the local DEA office and handed over grams of crack cocaine, said he’d bought with $1250 buy money the agency had given him.
Agents watched audio/visual recordings had been made with device Andrew had worn. Al though recordings made inside house were dark and blurry did exclude possibility he’d obtained drugs inside house from one (or perhaps both) men whom he’d been seen encounter when leaving it, agents decided they had sufficient grounds thinking had obtained drugs inside house justify applying search warrant. They applied issued shortly after Andrew’s arrival DEA office with drugs. before executing warrant agents go back house buy more with another $1250 agents gave him, returned more grams. search then conducted team agents local police, large quantities illegal drugs were seized. While search being conducted, officer charge occupants house (including defen dant), herded into front room house, twice overheard the defendant tell one the others “don’t worry, everything in that room mine.” The officer told the lead agent what he had overheard, and the agent entered the room and asked the defendant “would you mind stepping out to talk about this?” According to the agent the defendant replied “I don’t want to waste your time, every ‐ thing there’s mine.”
Later, but about six months before the trial, Andrew Wal ‐ lace signed affidavit, recorded video, swearing both he’d obtained on his two visits the de fendant’s house night search from defen dant from someone he’d met outside house, also he had lied when he had told DEA, before visits, drug dealer. had informed on defendant, said, out spite, because had had falling out.
Both lead DEA case lawyer tried get touch Andrew after reading his affidavit. This difficult do because had left state, expressing concerns his safety had led give him $5000 finance move. defense wanted obtain testimony from him persuade mag istrate issued warrant search de fendant’s house exclude discovered search from trial.
Although he’d left state, gone only as far St. Louis hiding. government’s lead investigator case spoke him phone, when investigator told he’d subpoenaed uncle’s trial, hung up; ignored investiga tor’s further attempts speak him. law ‐ yer could asked magistrate judge was con ‐ ducting pretrial proceedings case to issue mate ‐ rial ‐ witness warrant commanding Andrew to attend hearing, see U.S.C. § 3144, but didn’t. (The government asked such warrant as well, but ‐ centive do so, did not.) In Andrew’s absence mag ‐ istrate judge refused suppress any evidence. Later, but be ‐ fore trial began, lawyer able reach Andrew Minnesota asked at trial. promised would, failed show up at trial.
The lawyer wanted faute de mieux play videotape Andrew’s recantation at trial. government objected grounds hearsay, district sustained objection. right do so. recantation vid ‐ eotape inadmissible hearsay. It an out court statement offered its truth hadn’t made videotaped statement circumstances, such deposi tion court hearing, which subject cross examination. Fed. R. Evid. 804(b)(1); see, e.g., v. Sklena F.3d 731–33 (7th Cir. 2012); Greiner Wells , F.3d 325–26 (2d Cir. 2005).
At government introduced into part videotape Andrew’s second drug purchase, out any sound. lead explained jury what thought videotape showed—plastic bags con taining cocaine handing crack An drew while standing next microwave oven inside measuring cup containing off white sub stance turned out cocaine residue.
The defendant presents three grounds have sufficient merit to warrant discussion. The first is statement to lead DEA agent (“everything in there’s mine”) should not have been admitted at because defendant hadn’t received Miranda warnings. The district judge refused to exclude statement. gave rea sons. The first was it hadn’t been made in response a “custodial interrogation.” That was a partial mistake. The statement was made a custodial setting. suspects in front room, including defendant, were police cus tody; they were being overseen by a agent and, government concedes, were not free leave room. No matter; judge’s other reason refusing exclude statement—that agent wasn’t asking defendant make a statement, incriminating or otherwise, and thus not interrogating him—was correct. agent just ask ing defendant whether wanted make a statement, which expected proper answer would yes or no. Instead defendant decided blurt out an incrimi nating statement. That not statement elicited an terrogation, or even responsive agent’s question (which called yes or no answer, not confession), so there violation Miranda rule. Rhode Island Innis U.S. 300–02 (1980). (We sometimes tell lawyers oral argument: if question can answered “yes” “no,” answer “yes” or “no.” defendant could used such advice.)
Anyway agent stationed front room twice heard defendant say “everything room mine,” admission free did does object. And agent’s having repeated statement other agent could not have spelled the difference between acquit ‐ tal and conviction a reasonable jury. defendant’s second, most interesting, ground of that showing videotape of second buy at ‐
tempt jury, in absence of Andrew Wallace, vio lated constitutional right confront wit nesses against him. Andrew as we know did not testify. was a “witness” only sense that he wore a recording device produced depictions DEA agent terpreted incriminated defendant. An drew didn’t operate device. Like narrator Christo pher Isherwood’s short story A Berlin Diary Andrew could have said: “I am a camera its shutter open, quite passive, recording, thinking.”
True, he testified, he have undermined probative value what videotape showed seemed show (or was argued agent show), but he didn’t testify. And remember lawyer could have asked compel appear at testify, didn’t.
Pictures can convey incriminating information (think famous scene Blow Up David Hemmings’s processing photo negative finally reveals corpse). one can’t cross examine picture. video this case handing nephew picture; witness could cross examined. narrated video trial, narration series statements, so subject being cross examined was, thus “confronted.” testified what saw, what could said about recording device except agents strapped it on sent him into the house, where the device recorded whatever happened be in front of it? Rule 801(a) of the Federal Rules of Evidence does define “statement” include “nonverbal conduct,” only if the person whose conduct it was “intended it as an assertion.” We can’t fit the videotape this definition. defendant had ample opportunity challenge the
reliability of videotape, not only cross examining the who narrated also finding expert who videotape doctored. But videotape itself not “statement” maker of be “confronted” test “statement’s” accuracy.
So there confrontation clause error. if this is wrong, error harmless because of overwhelming of defendant’s guilt based what search turned up—drugs, some of buy money, defendant’s wallet, all pair of jeans his bedroom—and defendant’s uncoerced admission front room possession of contraband bedroom. third ground is should denied request appoint new counsel for him. ground request com munication broken down between existing counsel. That means, current counsel argues, denial request new coun sel equivalent denial constitutional right sistance counsel criminal case. That wrong: “the right counsel choice does extend defendants require counsel appointed them.” United v. Gonzalez Lopez U.S. (2006) (emphasis added); see also Wheat States, U.S. (1988); Mor *8 8 13 2160 ris v. Slappy , 461 U.S. 1, 14 (1983). If communication defendant’s counsel broke down a result neglect eptitude counsel, defendant may have a claim inef fective assistance counsel, to prove would have present evidence. For “if a is still afforded adequate representation, erroneous denial a motion substitution is prejudicial is therefore harmless.” United States v. Harris , F.3d 543, 552 (7th Cir. 2005); see also United States v. Volpentesta , F.3d 666, 672–73 (7th Cir. 2013). But see v. Smith F.3d (4th Cir. 2011); Daniels Woodford, F.3d 1198–2000 (9th Cir. 2005)—cases support position this case are contrary our decisions, cited above. present counsel has two ineffective assistance claims, however—the one just described, which she wants us decide on present record, a separate claim she wants reserve a possible section proceeding. That claim is based trial counsel’s failure seek a material witness warrant, magistrate indicated would have granted, bring Wallace court trial. Andrew, however, such a loose cannon lawyer would have been taking a grave risk dragging into court against will. Maybe anger would have recanted recantation. If not, well disintegrated under cross examination. probably would credible witness. maybe section proceeding new coun sel present convincing lawyer made grave mistake failing seek such warrant.
It procedurally inefficient allow claim ineffective assistance split into parts, one be litigated di 13 2160 9 rect appeal, other a collateral attack on conviction, at least if components are likely overlap—in this case, for example, breakdown of communication might have been factor trial counsel’s failure seek a ma ‐ terial witness warrant.
To claim ineffective assistance trial counsel on direct from his client’s conviction sentence is risky. Re ‐ jection claim bars from mounting col lateral attack on his conviction under 28 U.S.C. § 2255 grounded denial constitutional right effective assistance counsel, United States v. Flores , 739 F.3d 337, 340–42 (7th Cir. 2014); Peoples v. United States , F.3d 844, 847–48 (7th Cir. ) ; Fuller v. United States , F.3d (7th Cir. 2005), at least if it’s same claim; see Yick Man Mui v. United States , F.3d 55–57 (2d Cir. 2010). “We said many times imprudent present inef fective assistance argument on direct appeal.” Flores supra , F.3d at 341. By pleading ineffective assis tance appeal, where evidence usually can’t presented, counsel forfeits opportunity obtain evidence (as questioning trial counsel) bolster claim. concern we’ve just expressed raised oral ar gument, fearing we would reject dual claim ineffective assistance want (for evidence presented either breakdown communi cation counsel’s fault or should sought material witness warrant), present counsel asked us permit him reserve second claim pos sible section proceeding decide first claim; alternatively, if we insisted deciding both, permit withdraw both claims.
We reject such piecemeal litigation. lest our declaring claim ineffective assistance counsel forfeited pre cipitate section proceeding charging present counsel ineffective assistance, we hereby dis miss both claims without prejudice, while affirming judgment.
[*] Of Southern District Indiana, sitting designation.