United States v. Robert M. Morrison, Michael Anderson, James D. Walton, Sean Foley, and Jose Andrini-Varga

Kenwick, 97 in Brennan example, For America, STATES of UNITED Ill.Dec. Ill.App.3d Plaintiff-Appellee, (1981), noted the court N.E.2d re- party where found “waiver pro- legal had imitated arbitration questing MORRISON, Michael M. Robert issues arbitrable concerning ceedings Walton, Anderson, Fo- D. Sean James 6-day trial in a participated had Andrini-Varga, Defen- ley, and Jose oth- On the supplied). (emphasis merits.” dants-Appellants. noted Kostakos, the court hand, in er 89-3011, 89-2329, 89-2284, Nos. for motions complaints and two “filing two and 91-1164. 89-3130 constitute not does injunctions preliminary Appeals, _” Court Kostakos, Ill.Dec. waiver; Circuit. Seventh omitted). (citation N.E.2d at inconsistency resolved is apparent This 10, 1991. Argued June pro- I have of “submission” the definition 10, 1991. Oct. Decided case, the issues were In the former posed. 2, 1991. Dec. Amended As case, not. they were submitted, in the latter the arbitra- at bar case I believe by the mere submitted were not

ble issues by the motion

filing complaint aof I would Accordingly, relief.

emergency not con- is prejudice if that even

hold arbitration.

sidered, no waiver there was

IV. conclusion, I federal would hold

In it federal law that under

law controls its not waive did appellant clear that Alternatively, I would to arbitrate.

right rec- Illinois applies, law if

hold Illinois light as a factor prejudice

ognizes prejudice, appel- complete absence Fi- right its arbitrate. not

lant waive did recognize if law does

nally, even Illinois did appellant hold I would

prejudice, right to arbitrate because its

not waive and motion complaint filing of a

mere “sub- not constitute relief

emergency issues. of arbitrable

mission” (ar- Gorence, Paul Kanter J.

Patricia of the U.S. Attys., Office U.S. gued), Asst. Wis., Milwaukee, for U.S. Atty., Chicago, (argued), Kenneth L. Cunniff Ill., M. Morrison. for Robert Lardner, Jr., Shriner, Foley & L. Thomas (ar- Wis., Milwaukee, E. Shumaker Robert Wis., Stevens, Madison, Ross & gued), D. James Walton. Ill., Chicago, (argued), L. Walters

Ronald Anderson.. for Michael (argued), Appleton, Adman Robert A. Wis., Foley. for Sean Cohen, Steinback, D. Jeffrey B. Geena Genson, Stein- (argued), Leonard Goodman Ill., Chicago, for Jose Gillespie, & back Andrini-Varga. CUDAHY, and COFFEY

Before FLAUM, Judges. Circuit FLAUM, Judge. Circuit variety of a were convicted Defendants stemming substance offenses of controlled ring drug their involvement from mari- cocaine and distributed imported and and appeal their convictions They juana. variety grounds. of We aon sentences convictions, the sen- but vacate their affirm the defendants— three of tences of remand Anderson, Foley, and Walton—and resentencing. in which smuggling operation drug run out of participated was the defendants Juan, Marine, Puerto a marina San Gonzi business, be- early years of In Rico. its ring import- drug tween and Between 1986 cocaine. and distributed ed product its of marijuana became and group’s During periods, both choice. the same. operation remained method of ring travel to drug would Members for co- supply country of —Panama caine, marijuana purchase Jamaica — plane to fly it small product, their Rico, into drop it and coast Puerto Rico, place near small ties took Puerto defen the deserted beaches water off Other members of the coast. dants were tried in islands Milwaukee. This shipment by ring pick up the would prompted Andrini-Varga to file a motion transport it to Gonzi Marine and and boat pursuant to Federal Rule of Pro Criminal Rico, in Puerto where it was points other 21(b) requesting cedure that his trial be shipped in sealed coffee cans packaged and transferred Puerto Rico. The district Milwaukee, Chicago, points north. Andrini-Varga court denied the motion and appeal. contests that decision on Rule indicted in A total of 37 defendants were 21(b) that a states district court effect operation. The indict- connection this (as particular transfer of venue defen charged import- ment the defendants with particular dants or an in as counts of ing marijuana conspiring cocaine and dictment) par the convenience of the import both to and distribute cocaine and “[f]or witnesses, pled ties and the interest of marijuana. Many of those accused justice.” tried in defer to guilty; those who not were the district court’s trials, prosecu- 21(b) motions, separate including the resolution Rule three and will appeal. jury A giving tion rise to only reverse its decision if it amounts to an Morrison both con- convicted defendant Zyls abuse of discretion. United States v. conspiracy spiracy import cocaine and tra, (7th Cir.1983). import marijuana well as counts of three compel merely “The facts must and not of im- importing marijuana one count support an venue transfer before abuse porting cocaine. Defendant Walton appellate discretion will be found marijua- conspiring import convicted Hunter, court.” United States v. na, and defendant Anderson was convicted 815, (10th Cir.1982). Andrini-Varga conspiring and to of to distribute cocaine factors, asserts the balance of relevant Foley import marijuana. Defendant set which were out in Platt v. Minnesota conspiring of and to convicted distribute Co., 240, 243-44, Mfg. Mining & 376 U.S. import marijuana, as well as three counts 769, 771, (1964),1 84 S.Ct. 11 L.Ed.2d 674 marijuana. Finally, Andrini- importing of request militate in favor of his for a Varga conspiring was convicted of to im- venue; change in of he makes his home port marijuana import- three of and counts Rico, Puerto all of in his witnesses resided marijuana. will ing necessary, As dis- Rico, participation Puerto and his smuggling the of the cuss below details drug ring’s import operations occurred partic- operations and the defendants’ Weighed solely against in Puerto Rico. ipation therein. Defendants a host of raise factors, however, was these the fact that challenges and to their convictions sen- Andrini-Varga charged conspir- with We the bulk them in tences. address of ing drug the to violate laws and tried discussion; palpably our the remainder are five of the number co-defendants. Because without merit. involved, of defendants to have transferred Andrini-Varga’s trial—essentially granting I. ANDRINI-VARGA given him have rise to a severance—would A. resulting litigation” in “multiplication of great in- to the witnesses Andrini-Varga raises number of inconvenience expense volved as considerable relating claims venue of his trial. as well the at group’s government. Zylstra, the of the the 713 F.2d Though majority activi- (10) might suggested special Court elements which 1. The in Platt the relevance of other 244-45, "(1) following at S.Ct. location of affect transfer.” 376 U.S. [the] factors: witnesses; omitted). (2) (footnote possible these at 771 "No one of location of defendant: issue; (3) (4) likely dispositive.... for is ‘It remains location of events to be in considerations likely try to strike a balance court] location of documents records to be [district involved; (5) greatest impor disruption of factors are of defendant’s business determine which Maldonado-Rivera, transferred; (6) expense States unless the case is to the tance.”’ United v. counsel; (2d Cir.1990) (7) (8) (quoting United parties; location of relative 922 F.2d trial; (2d accessibility (9) place Stephenson, Cir. of of docket condi States v. 895 F.2d involved; 1990)). each tion of district division of trial to the discretion proper venue committed recognize that the 1336. only for abuse court and will be overturned normally “in criminal actions [the] Goodwin, discretion. States of offense was commit- in which the district (7th Cir.1985); United 770 F.2d ted,” and that see Fed.R.Crim.P. Alden, took conspiracy’s activities majority of the contends that Andrini-Varga Nevertheless, given Rico. Puerto place refusing to court erred in au- the district have countervailing considerations we attorney to travel Puerto his thorize above, drug that the fact discussed potential Rico “to interview witnesses.” some of ring did indeed distribute argument. While perplexed We are Milwaukee, we cannot drugs imported it Andrini-Varga’s court denied the district “compelled” the transfer facts say expense attorney travel reim- request for Andrini-Varga’s The district court trial. bursement, ex- it indeed authorize the did his denying its not abuse discretion $3,000 investigative servic- penditure 21(b) Rule motion. preparation used in the of his es to be Andrini-Varga mention makes no defense. B. light appeal. In this fact in his brief on Andrini-Varga argues that also Andrini-Varga grant- the fact that denying mo his erred $3,000 investigation budget, and in the ed a attorney requesting his tion that Wisconsin any argument part on his absence to travel to Puerto Rico allowed insufficient authorized sums were potential government expense to interview defense, say adequate we cannot mount an witnesses, depositions, and inves take their its discretion that the district court abused ring’s alleged drug tigate the scene investigative authorizing in not additional the Federal Under Rule 15 of operations. expenditures beyond that sum. Procedure, indigent Rules Criminal portion of motion respect With to that petition the court for defendant 15, Andrini-Varga was implicating Rule re- deposing witnesses payment of the cost quired demonstrate the existence of “ex- costs) “ex (including attorney travel when warranting ceptional circumstances” pres the ceptional circumstances” warrant testimony prospec- of the preservation testimony prospective ervation of use at He failed to tive witnesses for trial. use And under 18 for at trial. witnesses only “it is do so. His motion stated 3006A(e)(l), person for “counsel U.S.C. § depositions possible that number of will financially investi is unable to obtain who regard prepara- need be taken in to the to necessary or services gative, expert, other of this defendant’s defense.” This is tion request them adequate defense for “exceptional circum- not the stuff application.” Upon a find parte in an ex stances”; showing exceptional circum- are ing requested services “neces considerably more con- stances must be sary” indigent, and that the defendant particularized specula- crete and than mere 3006A(e)(l) courts to authorize directs § possible depositions for need tion about has expenditures. At least one court such only Faced with Andrini- future. apply only not to this subsection read Varga’s single request, the dis- sentence investigators, requests by but counsel Bittner) Magistrate (through did trict court requests of to the travel reimbursement denying err the motion the extent not attorneys embarking on own investi their recognize it rested Rule 15. We on behalf of their clients. See gations on ambiguous nature of Andrini-Var- that the Mateos-Sanchez, v. States United due fact ga’s request may have been to the Cir.1988). (1st 239 motion, that, attorney the time of the his at 3006A(e)(l), investigative stages ex- early preparing Under was in the § Andrini-Varga’s indigent defendants penditures on behalf of defense. We note that they preju- “nec- to the extent are Rule motion was denied without are authorized 15 been at a later essary adequate The deci- dice and could have renewed for an defense.” he more informa- deny requests is date when had collected grant or such sion

491 tion relevant to his defense and wit- not an especially heavy one, but he had upon rely. nesses whom wished the necessity—which establish seems to us to be more than the mere relevance—of

C. each testimony. witness’ Other courts Andrini-Varga required also faults dis have indeed particular the kind of denying request pursu trict his ity judge demanded, that the district here ant to Rule 17 of the Federal Rules of see, e.g., Espinoza, United States v. subpoena—at Criminal Procedure to (4th 1981), F.2d Cir. especially government’s expense—sixty witnesses to appears, here, when it that the testimo appear testify at trial.2 Andrini- his ny of some of the witnesses for whom Varga generally sixty asserted that these subpoenas requested were would be cumu witnesses were to his relevant alibi de lative, diminishing and hence of marginal fense, but relate the substance of value. Solina, See United States v. testimony anticipated their ex otherwise (7th Cir.1984); F.2d United plain importance of each. The district Garza, States Andrini-Varga’s request court ruled that sum, In we do not believe that specific and insufficiently was excessive judge district abused his “wide discre toto; judge and denied it in invited the tion,” Garza, asking F.2d at defendant to “submit a more reasonable Andrini-Varga to resubmit a more detailed indicating request precisely the nature of request. Rule 17 testimony that the witnesses would of govern specific testimony by fer and what ment would witnesses be contradicted D. prospective defense witnesses.” Andrini-Varga challenges also Andrini-Varga never renewed his motion. sufficiency supporting of the evidence argues He now that he need not have conspiring import conviction for mar specific explaining been more the rele- ijuana. prove “To that a defendant was a vance of each witness his list. His of a conspiracy member sixty person motion breaks down his wit- must sufficient evidence to demon lists, ness list into smaller each relevant to strate that the defendant knew of the con particular places periods. and time For spiracy and that he join intended to point, example, Andrini-Varga one lists pur associate himself with its criminal eight people pres- who could confirm his pose.” Auerbach, City ence in New during York and Florida (7th Cir.1990); 414-15 also see period government a one-week the when Townsend, United v. States alleged not, that he was elsewhere. He (7th 1991). conspir Cir. To of a know however, explain where he saw or interact- course, acy, agreement of an is to know of ed with his alibi witnesses and whether conspirators between to achieve a criminal

they were duplicative; apparently this is purpose. Townsend, See 924 F.2d at 1390- type specificity the of the district court evaluating government 92. In whether the desired. We do not think the district court met its proof, burden of we will the view Andrini-Varga. asked too much of Under in light evidence a most a favorable to the Rule defendant must show that the government, presence and a subpoenaed of a be will reverse conviction witness to government only expense if no rational trier “necessary is to an of fact could have adequate then, Andrini-Varga, defense.” found the essential of the elements offense sure, carry; charged beyond had a burden to to be it was a reasonable doubt. See part, presence In relevant Rule 17 states that: of the witness the and the of 2. necessary adequate is The court witness to an de- shall order at time that a sub- poena process be issued for service on a named wit- the [T]he fense. ... costs incurred upon parte application ex ness an aof defen- subpoenaed so the fees of the witness upon satisfactory showing dant a the paid [by government]. shall be the financially pay defendant is unable to the fees only Atterson, conspiracy’s The activities after No- 926 F.2d States 1, 1987, of vember consisted two failed attempts air-drop marijuana. In to Janu- trial, of Andrini- At a number 3,000 ary drug ring of the lost co-eonspirators—Dennis Varga’s McCar pounds marijuana at sea in two unsuc- of Friedl, Cleary, thy, Randy Kevin and James smuggling Andrini-Varga runs. cessful that on four different oc Brandt—testified attempts ought argues that these not to be Andrini-Varga participated in the casions part oper- conspiracy’s of the considered marijuana pick up air-dropped bundles disagree. air-drop A ations. We failed boat, the that he was owner of Gonzi support may be insufficient substan- Marine, the establishment where the con importing marijuana, conviction for but tive air-drops and after spirators met before in certainly it most furtherance of is act marijuana pick ups and where importation conspiracy. the See U.S.S.G. packaged ship sometimes stored comment, 1B1.3, (n. 1) (“conduct ... § pack ment, participated and that he the jointly- furtherance the execution of the aging marijuana shipment to the activity” be undertaken criminal should mainland on at least two United States the sentencing guide- considered under brief, Andrini-Varga In his de occasions. ("If lines); is see also 2D1.4 defendant § this; claims, however, that nies little of he conspiracy attempt or an convicted of government prove the failed to what he has involving any offense a controlled commit considers a critical element of the crime of substance, the level shall offense that he was involved conspiracy: object conspiracy as if the same par than in the mere planning of—rather attempt completed.”). had been con- ticipation smuggling in—the venture. Ab conduct, then, spiracy’s actionable strad- planning, argues, sent such evidence of he operational dles date of the Guidelines. proven “specif has not his that the indeed It is well settled Guidelines objective ic intent achieve apply to “convictions for criminal conduct disagree. conspiracy.” We Evidence of began prior effective date of is planning critical element Guidelines and continued after that date.” agreement conspiracy, is. Plan crime Osborne, United States v. ning simply way help crime is one (7th Cir.1991); see also United States bring object conspiracy; about the Fazio, (7th Cir.1990). executing plan is Andrini- another. Thus, the district court did not err in sen- Varga’s drug participation extensive tencing Andrini-Varga under the Guide- ring’s packaging operation pick-up lines. give more than sufficient to rise to the agreed inference that with his co-con II. MICHAEL MORRISON spirators import marijuana the Unit into A. joined ed and to demonstrate that he with them further that end. appeal Morrison claims on erred in denying district court motion

E. following testimony a mistrial the Lincoln, special Andrini-Varga’s argument agent final on a of the Donald appeal is erred in DEA. Lincoln testified that Panamanian that court they Sentencing to told him that applying the Guidelines his Defense Force officials marijua passenger in a conspiring import had identified Morrison as a conviction for plane suspected later na. He contends that the Guidelines are small that was marijuana containing all cocaine bound for Puerto Rico. inapplicable because imported conspiracy came into the The district court sustained Morrison’s ob 1987, jection testimony hearsay country to this on before November grounds. for mis date. Andrini-Var- Morrison then moved Guidelines’ effective correct, though ga’s trial. The court took motion under assertion fact advisement, from is and denied it at the conclusion legal conclusion he draws it not. government’s of the Andrini-Varga ease. credibility government’s witnesses. testimony now contends that Lincoln’s jury “The they decides are credible when it exceedingly prejudicial so that the district chooses to convict.” United States v. denying in erred Jackson, mistrial motion. 935 F.2d Cir.1991); see also Klein, United States v. ruling review the district court’s (7th Cir.1990). Another co-con- Morrison’s mistrial motion under abuse spirator, Cleary, Kevin also testified that standard, of discretion United States v. present during a conversation in 1416, 1423 Ashford, (7th Cir.1991), 924 F.2d which Morrison related his involvement in ruling will reverse its only if the cir air-drop cocaine escapade, and another “compel cumstances a district court in Pallais, conversation which Henry grant a Kwiat, mistrial.” United States v. plane’s passenger, other recounted sim- (7th Cir.), denied, cert. ilar tale about his flight cocaine with Morri- 484 U.S. 108 S.Ct. 98 L.Ed.2d 245 son. agents Government also introduced (1987). motion, In denying Morrison’s linking evidence Morrison to the drug court noted both that it had instructed the flight. inspector Customs Charles William- jury disregard testimony, Lincoln’s son (or testified that Morrison someone us- the substance of Lincoln’s stricken ing name) Morrison’s registered had testimony helped fly Morrison co —that ground control authorities pilot as the of a caine Panama from to Puerto Rico—was plane small which Juan, landed in San testimony cumulative offered other Rico, Puerto around the time the cocaine government (We witnesses. detail evi was air-dropped. Agent Lincoln testified dence in below our treatment of Morrison’s plane a small with the same tail num- sufficiency challenge.) Upon reviewing the ber had in shortly been Panama before the record, we conclude that the district court flight. agent Another testified that stamps correctly determined prejudice passport Morrison’s indicated that he inuring to Morrison from Lincoln’s stricken had been in days Panama in the preceding statement given was de minimis the other the flight. Finally, the testimony of co- presented by government evidence ty conspirators placed Morrison in the vehicle ing him to the flight. cocaine transport used to the cocaine bundle Gonzi for packaging, Marine and at Gonzi B. Marine packaging while the taking Morrison also contends that the place. We believe this evidence is suffi- government failed to evidence suf cient to support an inference that Morrison prove ficient him guilty importing joined knew of importation a cocaine cocaine and conspiring import cocaine. conspiracy and actually that he participated This claim is meritless. A number of indi importation of cocaine. viduals identified Morrison passenger as a flight, originating Panama, on a C. dropped kilogram package a 250 of cocaine in waters off the coast of Puerto Rico. Morrison next claims that the Dennis McCarthy, together who government with the improperly charged him with conspiracy’s acknowledged kingpin, John conspiring both to import cocaine con Roubas, played significant spiring role coordi import marijuana. He contends nating the activities of drug ring, and that the evidence at trial established who, being apprehended, after most, elected to there single was “at conspiracy,” government become a witness, testified and that impermissibly plane was on assisting parsed Morrison the conspiracy the to obtain two distinct air-drop. with the Morrison the drug assails convictions the ring’s marijuana credibility of McCarthy, the beneficiary of and importation cocaine activities. The “generous” what plea he terms a agree question, it, as we have previously put is ment, but in evaluating Morrison’s suffi whether “conspiracy a has been subdivided ciency challenges, may we not the arbitrarily, resulting reassess in multiple indict-

494 Morrison’s, who, separate illegal agreement.” prosecution, a single

ments for a Castro, v. 629 F.2d 461 charged States was also with involvement both United (7th Cir.1980); marijuana conspiracies: see also United States cocaine and Powell, (7th 898 legitimate enterprise A can business determining single conspiracy In whether a divisions, many programs, have activi- arbitrarily improperly has and sev- been ties, contracts; single they are not all a ered, commonality of we look to the co- agreement just top a because handful of situs, overt acts between conspirators, and charge officers is in of the entire firm conspiracies the and “whether the two employees the and some of lower level upon conspiracies depend each other two may or program work on more than one Cerro, 775 for success.” United States v. a contract. The same true with crimi- Cir.1985) (quoting F.2d Cas- enterprise. jury properly nal The found 461.) tro, F.2d at We note the rock conspiracies. two place place and the hard between which we Pallais, 921 F.2d at 687. overly exacting government the if are hand, analysis: on the one applying this D. govern its the progeny, under Castro and II.B., As noted above in Dennis charge multiplicitous ment con McCarthy against Dur testified Morrison. other, spiracies; on the we have not infre trial, ing the course of Morrison discovered quently discouraged government the from Tasch, agent that DEA Jeanne had who indicting many the too defendants under trial, McCarthy tak interviewed before had guise overarching skimpy a.single con Upon learning en notes of the interview. Townsend, F.2d spiracy. at 1390- See this, immediately a Morrison moved for 95; Pallais, United States mistrial, arguing prosecution’s that the fail (7th Cir.1990); v. Na ure to disclose evidence of the notes (7th Cir.1987). pue, and turn them over to defense was (cid:127) Although overlap there is considerable Act, in violation of Jencks U.S.C. impor- marijuana between the cocaine and unduly prejudicial. and was § conspiracies conspiracies—both tation used motion, district court denied Morrison’s and Marine, Gonzi utilized almost identical both appeals ruling. he now operations, air-drop, pick-up packaging Act, government Under Jencks organized by and led both were must, defense, upon motion of the disclose people—we same two do not believe the by defense statements made government separately indicting erred prior to government witnesses their testi- in each. The Morrison for involvement By statute, mony at trial. such disclosure ring appears engaged to have in co- drug place only government need take after importation primarily caine and distribution has witness testified direct examination. 1983-85, period during the whereas the practice According “open the local file” marijuana majority importation of its vast Wisconsin, District of how- Eastern place in 1986 and 1987. activities took ever, obligated government to turn Moreover, opera- organization’s cocaine notes, they qualified over Tasch’s if roughly were limited half-dozen tions statements, Only trial. before certain individuals, marijuana conspir- whereas types pretrial pro- “statements” must be acy’s operations half- involved additional government pursuant by duced who, co-conspirators far as dozen or so so (1) by 3500: “written made reflects, § statements] the record had little or no contact signed or witness otherwise activities and transac- [a] cocaine-related him”; (2) adopted by approved “steno- charged a sin- tions. Had mechanical, graphic, electrical or other re- conspiracy, gle group the latter would have “substantially cording^]” which are verba- rightly protested that there were two con- of oral statements made spiracies apt than one. We find tim rather recital[s]” witnesses; (3) “however response challenge to a similar court’s statements Pallais, by Henry co-conspirator made a witness to raised taken or recorded” grand jury. 3500(e)(l)-(3). 18 U.S.C. compel production § Tasch’s notes. We These definitions were by “intended Con magistrate’s take the decision to mean that gress to material describe that reli could the notes were not “substantial verbatim fairly ably impeach be used to recitals” of McCarthy’s statements, oral as testimony aof witness.” United States v. possible the other definitions of “state- Allen, (7th Cir.1986). 798 F.2d clearly ment” inapplicable are to the facts Agent notes and summaries of witness before us. adopted statements that neither are testimony Tasch’s suggests witness nor substantial verbatim recitals ruling court’s was correct. She indicated what the witness said are deemed unrelia that she had “several pages” of notes from ble under the statute pro and need not be her interview with McCarthy.' report Her See, id.; e.g., duced. United States v. digesting McCarthy’s interview was 37 Gonzalez-Sanchez, 825 F.2d 586-87 pages long. This leads to believe us (1st Cir.1987); Griffin, States v. United Tasch’s notes could not been have substan- 1981). 936-37 Cir. tially verbatim recitals of McCarthy’s inter- Agent Tasch’s notes were neither signed view thus need not produc- have been adopted by nor McCarthy; ques the only ed. Though they challenge the district tion is they whether “substantially were ruling, court’s neither Morrison nor Mi- verbatim recitals of McCarthy’s oral state (who chael Anderson also challenges the ments” transcribed some reliable “steno government failure to produce Tasch’s graphic, mechanical, electrical or other” notes, below) III.B. argu- see have made trial, fashion. At government argued presented ments or suggests evidence that that this was appropriate not the inquiry; otherwise. We conclude district it maintained long subsequent that so as a court abuse its discretion in ruling DEA report summarizing McCarthy’s government’s that the produce failure to statements had been released to defen Tasch’s notes did not warrant the declara- dants, obligated it was not to release tion of mistrial. notes, rough Tasch’s upon which the re report leased sup was based. We find no III. MICHAEL ANDERSON port position. for this If notes Tasch’s A. substantially were verbatim recitals of statements, McCarthy’s then the govern Anderson reiterates Morrison’s last two obligated ment was to turn them over. appeal. claims on For the reasons detailed See, e.g., Lonardo, United States v. H.D., in II.C. and arguments these fail. (6th Cir.1965); F.2d Williams v. States, (D.C.Cir. B. 1964). course, Of if rough Tasch’s notes were substantially the same report as the Anderson challenges also defense, released to the district court’s Sentencing calcu Guidelines good argument would have a er lations. Based on presented by evidence ror committed fail government, the district court deter ing compel production notes prior mined that placed convictions was harmless. See United States v. Tash category Anderson criminal history II of jian, (1st ruled, however, Guidelines. The court record, From the we cannot tell if is so. upward departure, shifting

Early trial, history category Anderson criminal Magistrate course VI appropriate, Bittner ruled explanation because prior without one Tasch’s notes contributing interview convictions in this case departure court’s The district months; in 168-210 was

tencing exposure the than kind different completely months.) was of 262-327 VI, it was category Sentencing The above. out examples set of propriety the challenges Anderson crimi- to award neglect did not Commission enhancement. significant murder; con- to the for history points nal dis allow the Sentencing Guidelines The his- assigned criminal trary, Anderson calculating in upward depart court trict as mandated conviction for his points tory when history score criminal a defendant’s be- simply court The district 4A1.1. § ad not category does history “the criminal impute did not Guidelines that the lieved de of the seriousness the equately reflect history points criminal Anderson sufficient 4A1.3. § criminal conduct.” past fendant’s reasoned The crime. heinous for his decision court’s reviewing a district In three crimi- awarding a defendant that whether first must determine depart we resulting any offense points for history nal legit are departure grounds stated the exceeding imprisonment of in a sentence de degree of the then whether and imate inexplica- month, 4A1.1 one year § one in former The reasonable. parture was non- than more murder no weighted bly nature, in hence de novo legal, is quiry believe forgery. We such crimes violent leeway considerable give will “we whereas upward departing in court erred determination” sentencing court’s to a above, the suggest weAs reason. for this depar degree of the whether considering to a speak 4A1.3 out examples set § appropriate. ture the Guideline purpose behind very different Cir. 1396-97 Williams, 901 F.2d the put by it was which than one 1990). to be is not intended list court. The district in- of the prong first to the turnWe ejusdem principle of exhaustive, but the very nature quiry—whether that we be counsels generis nevertheless conviction criminal prior Anderson’s allowing interpretations hesitant district court’s for the reason legitimate exam- far afield of wander that 4A1.3 § provides 4A1.3 Section upward departure. inclined are therein. We contained ples an where of situations list a non-exclusive prac- that the district court agree be- may be warranted departure upward sen- identically prior all weighing tice of does category history criminal “the cause year is than one length greater aof tences the seriousness reflect adequately not up- indiscriminate, to allow but somewhat criminal conduct.” past defendant’s the nature basis departures ward particular of a all examples are The list’s render would offense a considered depar- upward suggests each type: meaningless. Commission very choice defendant when may be warranted ture defendants to award consciously chose or conduct crimes committed has every con- history points for criminal three instructions, history calculation criminal regardless year, one greater than viction to consider. 4A1.1-2, specifically fail see § underlying offense nature convictions); 4A1.3(a) (foreign See, e.g., § sanction To 4A1.1. § conduct. See is (consolidated sentence 4A1.3(b) § fly would departure upward court’s district of- of serious aof series consequence choice, invite sen- of that face heavily weighted more be should fenses weighing their own to create tencing courts offenses); single sentences other than convictions. criminal prior schemes for by civil (misconduct 4A1.3(c) established § by Anderson’s we are appalled However 4A1.3(e) adjudication); § or administrative might we much however past, criminal resulting in a conduct (prior criminal ought Guidelines believe essence, 4A1.3 conviction). In § criminal of a de- nature discerning about the more rele- ensure backstop, designed sup- find past, cannot criminal fendant’s unin- through not fall does conduct vant depar- upward court’s district port for the broadly Commission’s gaps tended in the Guidelines. ture instructions. calculation written

497 C. would be in order. Absent additional evi- dence, however, we will attribute the mis- Anderson also contends that statement to careless inadvertence rather government agents engaged in misconduct than an intent to deceive. by improperly preparing a witness before charges trial. He agent that DEA Tasch conducting inquiry After in which it approached sequestered witness, Michael questioned presence Tasch outside of the Doyle, Doyle before testify at trial jury, the district court found that against Anderson, and warned him be Doyle Tasch's discussion with on the eve of in identifying careful Anderson because testimony against his Anderson did not previous two government witnesses had al sought-strik- warrant the relief Morrison ready misidentified Anderson. Morrison ing Doyle's testimony. agree. While alleges also agent that IRS Larry Kaiser surely appropriate it would have been more Doyle showed a photograph of Anderson to brought up for Tasch not to have the sub- Doyle ensure that would not be added to ject of the misidentifications of Anderson list of witnesses who all, concerning prior at misidentifications did not violate the wit- Tasch's comments botched their identifications of Anderson. allegations These very indeed, are serious sequestration ness order-which was in- and, true, if detail procedures identification prevent tended to ing witnesses from conform- which process by violate due virtue of testimony their to one another-nor their impermissibly suggestive nature. they unnecessarily impermissibly were suu~uestive. or See Bratkwaite, Manson v. 98, 432 U.S. 109-114, 2243, 97 2250-53, S.Ct. 53 L.Ed.2d (1977); 140 States, Simmons v. United D. 377, 383-84,

U.S. S.Ct. (1968); L.Ed.2d Denno, Stovall Anderson challenges also the sufficiency 293, 300, U.S. S.Ct. government’s support evidence to (1967). L.Ed.2d 1199 his convictions for conspiracy to distribute problem allegations Anderson’s cocaine conspiracy import marijua- is they border on misrepresentation of na. Neither challenge persuasive. the record. It is true that Tasch met with As to the cocaine conspiracy con Doyle night on the prior his testimony, viction, against evidence Anderson and that in the course of reviewing his came from single witness, Dennis McCar upcoming testimony, explained to him that thy, who as we above, noted signifi was a Anderson had been previously misidenti- cant participant conspiracy, in the working fied. It is emphatically case, not the how- closely kingpin, with its John ever, as Roubas. Anderson’s implies, brief McCarthy testified that Anderson Doyle first shown a photograph worked for him courier, in 1983 as a Anderson trans night. same During the dis- porting money and single trict cocaine on a court’s occa inquiry alleged into the miscon- sion between duct, Doyle McCarthy and testified that he Roubas. was not shown McCarthy a photograph also testified given late description of among Anderson. Anderson was agent a group (in IRS Kaiser did five show Doyle picture cluding Roubas, Anderson, Andrini-Varga, but that iden- Pal- Morrison, tification láis occurred sometime the men piloted dur- who ing the course government’s Panama) cocaine from investi- at Gonzi Ma gation, months Doyle’s rine before being while cocaine was testimony unloaded after April of 1989. Anderson’s attorney, successful air-drop, how- that Anderson took ever, has laid side-by-side part temporal- two in packaging the ship cocaine from ly episodes, distinct implying, think, ment in sealed coffee cans Chicago, that Kaiser was at Tasch’s side on the paid eve he was for his services. This is Doyle’s testimony, showing Doyle a pho- enough evidence jury allow a to infer tograph of If juxtaposition Anderson. agreed Anderson help distribute of these intentional, events was sanctions cocaine. 20, six weeks after day On March sup before. evidence is even more There tri- two weeks before arraignment and conspir conviction for Anderson’s

porting al, attorney met with him for Walton’s McCarthy placed marijuana. import ing to arraignment. Appar- first since time importa sessions for planning Anderson well; that meeting go ently the early summer operations tion behalf day, filed Walton’s counsel on same up a 540 picking boats 1986, on one represent- to withdraw. Counsel a motion July, in marijuana shipment of kilogram meeting during that his an affidavit ed in 1986, packaging a warehouse and at Walton: thereafter. shipment soon marijuana for very abusive and became paid the defendant Anderson that McCarthy testified a he desired and indicated that angry McCarthy testified also services. for his inter- attorney represent his different accompanied Roubas he and Anderson discuss [Tjhe defendant refused est. in junket to Jamaica marijuana-buying aon and ordered any further ... the matter November, carried with Anderson 1986. from to remove guard [counsel] pay Roubas’ was used him cash that jail cell. during negotia and was supplier, Another minor shipment. for another tions “it counsel concluded Walton’s Friedl, Randy conspiracy, in the participant best interest in the defendant’s would be “security awas that Anderson testified Without appointed.” new counsel be par ring. Yet another drug guy” for fur- hearing engaging or holding a Brandt, conspiracy, James ticipant denied Wal- the district court inquiry, ther in an was involved that Anderson testified motion, stating that: ton’s February or episode in importation other I can’t allow multidefendant case a [i]n Brandt said that Anderson of 1987. March attorneys, espe- to ‘fire’ their defendants marijua during with him on beach Mr. Walton is eve of trial. cially on the Brandt also testi operations. pick-up na trial, plead or go advised that will loading supervised that Anderson fied case, scheduled. April on 3 as out of the marijuana a shipment of onto of another appointed so he attorney will No new July August of 1987. plane in Jamaica [appointed coun- cooperate with should partici Cleary, another Similarly, Kevin sel]. witness, testified pant-turned-government that the dis appeal on contends Walton from calls had collect that he received a failing to conduct court erred trict in Jamaica Anderson was Anderson while request new counsel. hearing his mari shipment of a load of supervising court, faced with argues that a district He together, Taken of 1987. juana October counsel, and little knowl for new a motion than sufficient more this evidence is complaint edge of substance —as conspir support conviction Anderson’s duty here—“has the case was indeed import marijuana. ing to objec client’s inquire the basis for the into a rul withhold tion to counsel should WALTON DANIEL IV. JAMES known.” are made ing reasons until A. 363, States, F.2d 369 Brown v. United appeal is J., claim on concurring), most serious (D.C.Cir.1959) (Burger, Walton’s sixth court violated his denied, 79 S.Ct. 360 U.S. cert. by peremptori- to counsel right (1959). agree. amendment L.Ed.2d motion for substi- dismissing pretrial ly place take inquiry an must That such tution of counsel. of the law very from the nature follows motions. attorney governing substitution arraigned in Milwau Walton was justify the only Attorney-client conflicts time the February at which kee on when “coun- motion 3, 1989, grant substitution April trial an court set district as to at odds defendant are so ar sel and represented date. Walton was adequate de- presentation attorney prevent court-appointed raignment by a Hillsberg, fense.” States assigned Walton’s case who had been (7th Cir.1987); see gues also Unit in conducting this inquiry we Morris, ed must reverse his conviction if he in- Cir.1983)(grant of motion warranted where deed entitled have his substitution mo- great conflict is “so that it in a granted. resulted tion We take a different view. total lack of communication preventing an Courts allow defendants to change attor- defense”). adequate Unless a neys substitution in certain circumstances to ensure motion or the accompanying affidavit of they are afforded the effective assist- ance of counsel. It follows that the court’s extremely detailed-which, counsel is here, peremptory denial of Walton’s motion was is often not the case-a court cannot make such determination without con only harmful if it resulted in a violation of proper ducting hearing at which both this sixth amendment right. Under Strick- attorney and testify client as to the nature land v. Washington, 668, 466 U.S. 104 of their reason, conflict. For this 2052, the S.Ct. 80 L.Ed.2d (1964), 674 Walton “ appeals courts of held have ‘the that dis must therefore demonstrate per- that the trict engage court must in at least some formance the attorney he was saddled inquiry as to the reasons for the defen with was not “within range of compe- dant’s dissatisfaction existing with his at tence demanded of attorneys in criminal ” torney.’ Fulcomer, cases,” McMahon v. 687, 821 id. at 104 2064, S.Ct. at 934, (3d Cir.1987) F.2d 942 (quoting United that “but for” deficiencies, counsel’s “the 185, States v. Welty, (3d 674 F.2d Cir. result of the proceeding would been have 1982)); see Padilla, also United States v. different.” Id. at 104 S.Ct. at 2068. (10th 819 F.2d Cir.1987)(“the 956 n. 1 Walton that contends his attor district court should make a inquiry formal ney’s performance was indeed deficient. into the defendant’s reasons for dissatisfac points He first to the attorney fact his present tion with counsel when substitution did not meet with him to discuss the merits requested”); counsel is Hillsberg, 812 of his case trial, until 13 days before six (“defendant F.2d at 333 given [should be] weeks his arraignment. after delay, This opportunity an to state his reasons for the suggests Walton, made the adequate prep request”); [substitution] United States v. impossible-no lawyer aration of a defense Allen, (1st Cir.1986) lay could groundwork for a defense (“Where the accused voices objections to properly tested the conspiracy allega appointed counsel, the trial court should against tions him in such a short time. inquire into the reasons the dissatisfac principal complaint Walton’s is that at his tion.”); Wainright, Thomas v. meeting initial with expressed counsel he a (11th Cir.1985) (same); Morris, desire to defense, an alibi but his (“In 714 F.2d at 673 order to exercise its attorney investigate refused to viability properly discretion the court must elicit of such a defense interviewing alibi from the defendant the reasons for his witnesses, witnesses. These con Walton objections counsel.”) tends, would have testified that As excerpts our from Walton’s motion elsewhere the times govern at when the suggest, his request substitution was clear- ment’s witnesses par testified he was ly sufficiently not detailed to allow the ticipating conspiracy. district court to dismiss it out of hand allegations Walton’s are serious. Thir- further inquiry. without The district court days teen great not a is deal of time to was required to make a more detailed in- mount a complex defense a multidefen- vestigation of the nature of Walton’s con- dant drug conspiracy. Even more trou- flict his attorney thereby maintain bling is apparent refusal of Walton’s integrity of Walton’s sixth amendment attorney investigate the possibility of an right counsel. failure Its to do so was alibi defense. As disturbing as counsel’s abuse its discretion. is, however, refusal are unable deter- We must then address whether the mine on the record before us it whether court’s error was harmless. Walton ar- constitutes conduct that falls below govern- If the prejudicial. counsel was at Defense standards. amendment’s sixth there would regard, in this is correct ment make reasonable duty to have “a torneys remand, would as Walton be no need deci reasonable make a or to investigations sixth establish necessarily unable to be investigations particular makes sion that turn, then, to violation.3 amendment 690-91, at 104 S.Ct. at unnecessary.” Id. prevail under inquiry. To here, prejudice our made investigation As no 2066. “rea- Strickland, must establish Walton the decision is whether question attorney’s per- probability” sonable engage in one counsel not Walton’s the trial’s outcome. affected rea formance be would a decision Such reasonable. Strickland, 104 S.Ct. U.S. at meeting, if, Walton during their sonable Petersen, 2068; Montgomery to believe attorney “reason gave his Whether such 407, 414 be investigations would certain pursuing depends, of exists probability reasonable Id. at harmful.” or even fruitless strength it, course, nature and on the put has Or, as this at 2066. S.Ct. him, and the against case government’s if he excused failure would counsel’s attorney’s failures. of his nature investi decision make a “rational could Crisp v. Duck unnecessary.” gation against Walton. testified individuals Four Cir.1984). 580, (7th worth, F.2d 583 743 first Walton that Randy Friedl testified had diffi often have that courts We note fall of in the late up at the marina showed reason or as a rational culty characterizing and Andrini-Varga’s boats on to work 1986 judgment professional of exercise able time, join not the did Walton at that that investigate failure to complete counsel’s however, living in was, Walton conspiracy. case was the as witnesses alibi potential processing as a doubled a house which Debango, 780 v. United States here. See marijuana. This newly imported for point (D.C.Cir.1986); 81, 85 F.2d “Ev- Friedl. according to problems, posed (7th 656, n. 3 Cir. 658 & F.2d Wolf, 727 bring a move and to time we were do ery 584; at Thomas 1984); Crisp, 743 get out they had to him ... marijuana [in] Cir.1984). (8th 308 Lockhart, 738 F.2d at Tr. a conflict.” There was there. of why to Nevertheless, a clue as without Friedl, solution, according to 1385. The did, with he and as counsel acted Walton’s brought they “[Ajfter that simple. de understanding alibi of the a better out being that he organization him into the we are present, to Walton wished fense going on.” Id. what was always knew of coun adequacy the to evaluate unable wit- government testimony of three The for an evi- A remand representation. sel’s statement. Friedl’s nesses corroborated ap therefore seem hearing dentiary would that testified Brandt, Cleary, and Schmidt Myers, 892 States v. propriate. See United conspiracy’s the in involved Walton 642, 649 February between operations importation Cleary Brandt and January 1988. and troubling the concedes The during a boat Walton manned testified that argues allegations, but of Walton’s nature marijuana in Feb- air-dropped pickup of of the part the failure on any error or that "to sub- failure ato wholesale engage defense amounts in a argues not we need Walton 3. meaningful adver- to ject prosecution’s case attorney’s the refusal inquiry, his prejudice because Though he did testing.” not. We think sarial error constituted put an alibi defense to on defense, counsel present Walton’s alibi presume the not magnitude us allows to of such witnesses, impeaching them cross-examine States v. prejudice. See United of existence testimony poten- prior and their on based their Cronic, L.Ed.2d S.Ct. 466 U.S. apparently some met with He tial for bias. the Court presumption, (1984). a held Such success, acquittals obtaining on three substan- Cronic, is denied operates "the when accused in conspiracy to charges a and importation tive stage or when of his trial” at critical counsel against In charge Walton. levied subject "entirely distribute to fails but counsel attorney say Walton's light, we cannot meaningful adversarial prosecution’s to case the testing." government's case mean- subject failed Walton at 2047. 104 S.Ct. Id. at there- testing. Walton must ingful stage adversarial of the at a critical denied counsel was not prevail his in prejudice to then, fore demonstrate attor- trial; question, is whether challenge. sixth amendment alibi present an pursue and ney's failure Cleary ruary placed sentencing March of 1987. also proceedings indicates that the at district responsible Walton the warehouse where the contra- court found Walton Brandt, conspiracy’s 6,600 packaged day. importation the next band was of pounds marijuana, but that Cleary, placed all Walton it indeed Schmidt why made no quantity effort detail during marijuana’s packaging boat chosen. reading transcript Our shipment. Brandt also testified that Wal- suggests that the district court found Wal- pick-up in a in ton was involved sometime liability require ton’s so evident as to- October and Schmidt testified that explanation. sort of detailed However boat in Walton manned a an unsuccessful obvious the evidence amount air-drop operation early December seemed, agree have with Walton that Finally, Cleary placed 1987. Brandt and establishing court erred in not beginning Walton on boats both greater specificity quantity serv- January end of when two unsuccess- ing basis Walton’s sentence. air-drops attempted. ful were conspir- evidence ties Walton argues Walton testimony of his acy’s February activities from 1987 to Jan- alibi proved witnesses would have uary importation hence to the during drug ring's was elsewhere at- (1400 pounds marijuana lbs. in Feb- tempts import marijuana in December ruary, 1500 in July, lbs. and 1500 lbs. in January 1987 and 1988. Even if this were October). The evidence also indicates that true, however, government’s witnesses conspirators—Walton included—at- importation operations him have tied tempted to import pounds total spring and summer of 1987. Walton Quantities marijuana January in- 1988. suggest does not in his brief that his alibi attempts volved such are also considered portion witnesses would have refuted that under the calculating Guidelines in base government’s light of the case. In of the (“If offense levels. See U.S.S.G. 2D1.4 a § fact that Walton’s alibi witnesses would conspiracy defendant is a convicted of or significant not have made in a part a.dent attempt any involving to commit offense government’s case, of the formidable substance, a controlled the offense level part conclude that failure on the of be object shall the same as if the of the investigate attorney an alibi conspiracy attempt complet- had been prejudicial. defense was not ed.”). Walton contends that the amounts involved in the smuggling successful runs B. ought calculating not to in be considered Sentencing Under the Guide his level base offense because he was ac- lines, drug of sentences offenders are quitted by jury of the im- substantive tied to the of quantity controlled substance (counts 24, portation 27 charges 25 and of charged in involved offense. See indictment) relating episodes. to these 2E1.1. conspiring Those convicted of § “Nothing guidelines,” however, “pre- drug criminally violate the laws are respon judge a taking vents from account of con- quantity drugs sible for the in total in engaged, duct which the defendant conspiracy they joined which the can rea prevents an acquittal whether or not sonably be estimated have dealt. See imposition penalties directly of criminal on 1B1.3; Sergio, United States v. 934 F.2d § Fonner, that conduct.” v. United States (7th Cir.1991); Townsend, (7th Cir.1990). 920 F.2d The challenges F.2d at 1389. Walton the dis acquittal of on jury’s Walton the substan- trict computation court’s of the amount importation only tive that counts means it marijuana relevant determination beyond did not find reasonable doubt that argues his sentence. He that the district engaged charged he conduct. At court sentenced him on the quan basis of a sentencing, district could have court tity marijuana—6,600 pounds—without importation ep- nevertheless considered the having explicit made findings factual if in- isodes it had established Walton’s (less support figure. transcript demanding) prepon- The of the volvement ever, direct examina- present for Brandt’s appropri- of the evidence standard derance Brandt tion, cross-examine present to at 1333 id. sentencing matters. See ate himself). Broudy was days Ebbole, On two other cases); v. (collecting United States the direct testimo- 7-8 hours of absent for Our re- witnesses. ny it of two finding; made no such district indicates, however, that of the record it view episodes importation which detail bearing no had calculation, two witnesses these latter nor arriving at its considered against government’s case at all on preponderance find that did it absent Finally, Broudy was also Foley. that supported the conclusion evidence jury judge instructed ac- when importation participated in the Walton its verdict.4 jury returned when the of the substan- were the basis that tivities acquitted. charges of which he tive expected, Foley ar might As be especially necessary specificity was Such amounted to Broudy’s absence gues argued light the fact that Walton He con of counsel. ineffective assistance it had after joined conspiracy months against cedes, curiously, the evidence held not be begun and therefore should pre convincing sufficiently as to him is importations. for its earliest liable establishing prejudice. him from clude and re- sentence Walton’s therefore vacate Nevertheless, citing district court case to the mand Walton’s Cronic, S.Ct. 466 U.S. findings and resen- factual appropriate (1984), that his at he asserts L.Ed.2d 657 Tolson, See, tencing. e.g., United States magnitude torney’s errors were (N.D.Ind.1991). F.Supp. 1332 of ineffective presumption to a give rise inquiry un any prejudice renders ness that FOLEY SEAN V. necessary. A. progeny its indeed stand Cronic too, Foley, argues appeal pre- prejudice will proposition the effective assistance he was denied effective as- in a sixth amendment sumed Walton’s, circumstances, like His counsel. ac- inquiry when “the sistance of counsel up pause. give stage at a critical denied counsel cused is 2047; 659, 104 S.Ct. at trial.” Id. at attorney, of his is that his Foley’s complaint Washington, 466 v. portions of also Strickland see Stephen Broudy, was absent 2052, 2066-67, 691-92, 668, 104 S.Ct. Broudy days, U.S. three different his trial. On (1984); ex United States govern- 80 L.Ed.2d 674 testimony of for the was absent 1011, (a O’Leary, 856 F.2d v. rel. Thomas day’s first absence ment witnesses. The (7th Cir.1988); O’Leary, 1018 Siverson hours) the cross- involved of three total Cir.1985) (7th 1208, (preju- 1216 Brandt, important 764 F.2d an of James examination inapplicable totally “is when inquiry testified dice government who for the witness proceedings and from Broudy counsel was absent Foley. day, against On that judge- tactical to make unavailable conducted the cross-examinations missed whatsoever”). error of In cases of attorneys representing Fo- ments by four of prejudice of was, magnitude, the likelihood such (Broudy how- ley’s co-defendants. eyes open.” doing made with and his choice is Broudy absent time 4. Each 835, 806, California, S.Ct. Foley contin 422 U.S. 95 if he consented court asked Faretta attorney’s 2541, (1975) 2525, (internal absence. the trial in his uation of L.Ed.2d 562 sug agreed. Foley omitted); time Each gests v. Belan quotes see also United States the need this "consent" obviates Cir.1991); (7th United States v. ger, 936 F.2d 916 Broudy’s ab any inquiry propriety of into the (7th Moya-Gomez, Foley's disagree. "consent” sences. a Faretta did not conduct The district right counsel. of his to a waiver amounted Foley poten inquiry advised in which he right be must of this sixth amendment Waivers being attorney; consequences without of tial say knowing intelligent, which is inquiry, reject the we such a detailed absent dangers “be aware of the must made defendant intelligently Foley knowingly argument self-representation, disadvantages so Broudy’s absence. consented he knows what will establish that the record great is so “that litigating the cost of do not think it inconsequential, [the neither do particular effect in a unjust- case is we error’s] find it to have occurred at a “critical Cronic, ified.” 466 U.S. at stage.” Broudy S.Ct. for Brandt’s Similarly, at 2046. the harmfulness of direct examination and to cross-examine such a sixth amendment violation Brandt will be himself. On the us, facts before presumed it is found we perceive when to have do not potential “affect- for “sub- ed—and stantial” prejudice contaminated—the entire criminal in such an absence. proceeding.” Texas, Our conclusion might Satterwhite v. be different if Foley 249, 257, U.S. and his 108 S.Ct. co-defendants were presenting an- tagonistic (1988). defenses; L.Ed.2d 284 if this case, were the Broudy’s presence during co-counsel’s Foley injury does to his own argument cross-examination would indeed impor- by both asserting that he falls under Cron- tant. Foley not, however, has advanced yet ic and conceding the absence preju- argument this given otherwise us reason question dice. We how one can concede to believe that Broudy’s absence during the the absence prejudice arguing while cross-examination of Brandt co-counsel favor of a presumption prejudice. Tech- was critical. Similarly, we do not find the nically, suppose, one could argue that court’s reading of the jury (as instructions Cronic and Strickland establish an irre- opposed, perhaps to a court’s jury instruc- buttable presumption prejudice, see tion conference counsel) to have been Lane, Sanders v. stage critical of the proceedings. Cir.1988), that would be unaffected Fo- ley’s Putting admission. inconsistency As we have previously noted, how aside, we do not excep- ever, one believe—with counsel’s during absence the return Broudy’s tion—that concededly egregious of a verdict well constitute type (or, behavior rises the level of should we denial of counsel that excuses the need to say, of) sinks to the level a denial perform of coun- prejudice Strickland’s analysis. sel at a critical stage of proceedings Siverson, See 1214-15, 764 F.2d at 1217. that would excuse the need prejudice for a We have so held because counsel’s failure inquiry. “A stage critical is one appear where deprives often defendants “of the potential prejudice substantial defen- potentially privilege [a] having valuable rights dant’s particular inheres in the jurors con- polled individually on their verdicts.” frontation and where counsel’s abilities can Id. at 1219. if Broudy’s Even absence help avoid that prejudice.” O’Leary, 856 when the verdict was returned constituted 1014; F.2d at see also Coleman v. assistance, Ala- ineffective Foley still would bama, 1, 9, 1999, 2003, 399 U.S. 90 S.Ct. 26 have to demonstrate that such error was (1970).5 L.Ed.2d 387 point As we harmful,6 out see at id. an such ab above, Broudy’s absences, two of while cer- sence does not type constitute the of sixth tainly not excused, to be condoned or came amendment violation justify that would by inconsequential at periods during the passing entirely the harmless inquiry. error course of Broudy’s trial. As to first Satterwhite, ab- See 486 U.S. at 108 S.Ct. (from sence the (sixth cross-examination of at 1797 amendment violation must by Brandt counsel), other defense while we affect and pro- contaminate entire criminal despite 5. We note that Cronic's insistence emphasize on a 6. We the distinction between an inef- presumption prejudice cases, of in certain analysis the fective assistance analysis. and a error harmless prosecutions’s definition stage first, of critical In the we determine whether a —and hence the prejudice determination of whether a sixth amendment violation has occurred. De- presumption applies depends pending itself to some de- ap- on whether Strickland or Cronic — gree prejudice analysis. on a engag- plies, prejudice Even when may not be a critical ing then, inquiry, in a Cronic component second, we are never analysis. of an such In the completely moorings loosed from the factual of we determine whether the constitutional viola- the case before us. The notion that Cronic and tion is might pre- harmless. The fact that we progeny completely its any obviate the prejudice need for purposes sume the for of former the inquiry potential prejudice into the for inquiry is thus necessarily does not dictate we do entirely not accurate. purposes the same for the of the latter. of reason-supported determination record, harmless with dispensing ceeding justify to guidelines aof components harmfulness). principal the presuming analysis and error of determination including the sentence, its court here, the trial where, as And We range.”). guidelines applicable the the of member each polled initiative own re- and Foley’s sentence vacate rendered, Tr. therefore see was verdict the after jury explana- an for court district the mand cannot counsel of 2746-47, absence the at any neces- and imposed the sentence tion of the prejudice in resulted have said to findings. 1219; sary factual Siverson, See defendant. Calabro, 467 United States out set reasons Cir.1972). For the (2d VI. challenge amendment above, Foley’s sixth are arguments remaining Defendants’ add, how hasten fails. therefore dis- For reasons merit. without plainly signi way no conclusion ever, this of convictions affirm above cussed repre incomplete Broudy’s of approval fies the sen- vacate but defendants each client. his of sentation and Anderson, Foley Walton and of tences resentencing consistent their remand for B. opinion. with district contests Foley also concurring in Judge, CUDAHY, Circuit Like his sentence. of calculation court’s part. dissenting in part and court Walton, argues he mari of amount determining skillfully with erred deals opinion majority The criminally held could be which this diffi- for juana presented problems many both was convicted (Foley save respects responsible. in all join I it case cult marijua and distribute import James conspiring appeal to the respect With one. Foley’s evaluating way of no for na.) states, haveWe “A remand Walton, majority sentencing transcript of as the therefore hearing claim would evidentiary district that the not reflect hearing does This seems 500. At appropriate.” seem ex regarding findings of Walton’s judge made resolution correct me be the importa Foley’s stop involvement should tent our consideration appeal, and The conspiracies. distribution tion and there. district only indicates transcript Metropolitan Cor- held at was Walton years fourteen a sentence imposed court trial Chicago before rectional Center dis conviction. conspiracy each Milwaukee. was from counsel appointed comport do actions court’s trict time the first Walton visited Counsel 3553(c), mandates which U.S.C. § trial, there days before only thirteen court open “state must judge district Walton’s falling out. an immediate particular imposition for its reasons appar- counsel rejection vehement requirement general “This sentence.” refusal counsel’s precipitated ently indicates district awhen satisfied mo- prompt A witnesses. alibi interview how it range, Guidelines applicable was denied counsel tion for substitution Georgiadis, chosen.” hearing. without also See (3rd 1219, 1223 Sixth concludes majority The Johnson, 935 F.2d v. States United Wal- because not violated Amendment ac guidelines Cir.1991) (“The met some have would alibi1 proffered coupled ton’s statements, policy companying I all. not him but against the evidence on-the- open, mandate Rule only may counsel assistance fective brought finding Walton majority's 1. § 28 U.S.C. under motion inadequacy of may reflect prejudiced sentence. conviction vacate the inadequacy is an This presented us. record (1990). Mr. Myers, 892 our rule propriety object lesson opportunity pursue that be able Walton ordinarily, based if Walton’s: like claims record. record, to build of inef- claims trial outside evidence hearing think that at a this thesis and its

significance might have been demonstrat-

ed, hearing they but without a specula- are

tive. jury refused Since to convict Wal-

ton on importation substantive

charges, it was apparently skeptical about

the sincerity of the witnesses. We do not

know testimony jury what found credi-

ble—that smuggled Walton drugs on every

occasion the said only he did or

on some of them. A hearing necessary

to determine whether Walton preju-

diced counsel’s refusal to investigate his alibi.

I therefore respectfully dissent as to the

matter noted. America,

UNITED STATES of

Plaintiff-Appellee, ROSA,

Hector Efrain Salas a/k/a

“Cholo,” Vazquez and Luis a/k/a “Tito,” Defendants-Appellants. 89-2704,

Nos. 90-2917 and 90-3568.

United States Court of Appeals,

Seventh Circuit.

Argued May 1991.

Decided Oct. 1991. notes Anderson’s government agents other qualify history brutal, did not criminal score for a statements production execution-style whose com- murder. history Criminal pelled II, under the category court, Act. Jencks The district determined the “serious court, turn, Magistrate ly relied Bitt- severity underestimated” the of this ruling ner’s in denying (In II, defendants’ motion category crime. Anderson’s sen-

Case Details

Case Name: United States v. Robert M. Morrison, Michael Anderson, James D. Walton, Sean Foley, and Jose Andrini-Varga

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Dec 2, 1991

Citation: 946 F.2d 484

Docket Number: 89-2284, 89-2329, 89-3011, 89-3130 and 91-1164

Court Abbreviation: 7th Cir.