United States v. Irorere, Lucky ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3671
United States of America,
Plaintiff-Appellee,
v.
Lucky Irorere,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 245-2--Harry D. Leinenweber, Judge.
Argued May 19, 2000--Decided September 26, 2000
Before Flaum, Chief Judge, and Manion and Williams,
Circuit Judges.
Flaum, Chief Judge. Defendant Lucky Irorere
appeals his conviction of conspiring to import
heroin in violation of 21 U.S.C. sec. 952(a), 21
U.S.C. sec. 963, and 18 U.S.C. sec. 2, as well as
his conviction of importing heroin in violation
of 21 U.S.C. sec. 952(a) and 18 U.S.C. sec. 2.
The defendant argues that the evidence presented
at trial was insufficient for a jury to convict
him of conspiring to import heroin and importing
heroin and that the district court erred in
refusing to explicitly instruct the jury that the
defendant had to have knowledge of the foreign
origins of the heroin in order to be convicted of
both charges. The defendant also contends that
the district court erred in refusing to appoint
a lawyer to represent him at sentencing and in
denying his motion for a new trial based on
statements made by his alleged co-conspirators
during their plea colloquies. In addition, the
defendant claims that the indictment issued
against him was void because it allegedly lacked
the signatures of the grand jury foreperson and
an attorney for the government. For the reasons
stated herein, we affirm the district court.
I. Background
The charges of which the defendant was
convicted stem from an extensive investigation of
drug trafficking between Thailand and the United
States. As part of this operation, the Drug
Enforcement Administration ("DEA") placed Mark
Lasyone, a cooperating source, in Thailand.
Lasyone was eventually introduced to several
members of a purported drug trafficking
organization, including Haas David Kalusha, also
known as Nicholas Onaro, and Onaro’s girlfriend,
Thiamchan Chiawan.
As part of the drug trafficking investigation
in which Lasyone was participating, DEA agents
Anthony Thomas and Jeff Johnson posed as
Lasyone’s contacts in the United States. In
addition, the DEA office in Chicago obtained an
undercover fax number and two undercover postal
addresses to be used as a point of receipt for
heroin shipped to the United States. Once these
undercover addresses were established, Lasyone
informed Onaro that he could arrange locations in
the United States that could accept delivery of
heroin and subsequently notified Onaro of the
existence of the two undercover postal addresses.
Following Onaro’s receipt of the undercover
postal addresses, two separate shipments of
heroin were sent to the United States. On January
22, 1998, a package containing 289.9 grams of
heroin arrived at one of the undercover addresses
following the receipt of a fax from "David," an
alias of Onaro’s, indicating that the "samples"
had been shipped. A second package containing
310.7 grams of heroin arrived at one of the
undercover postal addresses on March 24, 1998.
The defendant contacted Agent Thomas shortly
after the arrival of both of these shipments.
On March 30, 1998, Chiawan traveled to the
United States where she met Agent Thomas, whom
she believed to be Lasyone’s son-in-law. Agent
Thomas and Chiawan planned to deliver the heroin,
obtain payment for it, and return to a nearby
hotel to meet Lasyone. On the same day that
Chiawan arrived in the United States, the
defendant contacted Lasyone to inform him that
everything had arrived. Although the defendant
arranged a meeting between himself, Agent Thomas,
and Chiawan for March 31, 1998, that meeting was
rescheduled for the following day at the request
of the defendant.
After the defendant cancelled the March 31,
1998 meeting, Lasyone became dissatisfied with
the defendant’s handling of the drug transaction.
On April 1, 1998, Lasyone telephoned Onaro to
complain about the defendant’s conduct. Shortly
after this call, Agent Thomas and Agent Johnson
arrived at Chiawan’s hotel to meet with the
defendant. The agents met the defendant in the
hotel lobby and then proceeded to Chiawan’s room
where the defendant and Agent Thomas discussed
payment arrangements. When Agent Thomas expressed
concern over the defendant’s failure to produce
any money in payment for the heroin shipment, the
defendant responded that he had a long-standing
relationship with Onaro and that Agent Thomas
should call Onaro to discuss it with him.
In an attempt to break the impasse over the
method of payment for the drugs, Agent Thomas
called Lasyone and arranged for Lasyone to
telephone Onaro. When Agent Thomas informed the
defendant that Lasyone was going to contact
Onaro, the defendant stated that he had been
surprised by Agent Thomas’s request for immediate
payment and that he would be prepared next time.
The defendant also said that he had talked to
Lasyone at least twice and that no one had ever
mentioned money.
After speaking with Agent Thomas, Lasyone
telephoned Onaro in Thailand and complained that
the defendant had not brought any money with him
to the exchange. Although Onaro agreed that it
was Agent Thomas’s decision as to whether the
transaction would proceed, Agent Thomas
eventually relented and decided to go forward
without payment in advance. Agent Thomas then
sent Agent Johnson to retrieve a package that was
purportedly filled with heroin. When Agent
Johnson returned, the package was shown to the
defendant and placed in the defendant’s duffel
bag. The defendant was arrested as soon as he
took possession of the heroin.
Following his arrest, the defendant waived his
Miranda rights and gave a post-arrest statement
to the government. In that statement, the
defendant said that he was first contacted by an
associate who gave him Onaro’s phone number and
who told him that David in Thailand was trying to
contact him. The defendant also described various
aspects of the heroin shipment from Thailand to
the United States and admitted that he traveled
to Chicago to pick up the drugs that Onaro sent
from Thailand.
On October 12, 1999, the defendant was
convicted of conspiring to import heroin in
violation of 21 U.S.C. sec. 952(a), 21 U.S.C.
sec. 963, and 18 U.S.C. sec. 2, as well as
importing heroin in violation of 21 U.S.C. sec.
952(a) and 18 U.S.C. sec. 2. Based on these
convictions, the defendant was sentenced to one
hundred months in prison. The defendant now
appeals, alleging various errors on the part of
the district court during both the guilt and
sentencing phases of trial.
II. Analysis
A. Sufficiency of the Evidence
At trial, the defendant made a motion for a
judgment of acquittal, arguing that the
government did not present sufficient evidence to
prove beyond a reasonable doubt that he conspired
to import the heroin in question or that he
imported it. "Challenging the sufficiency of the
evidence is an uphill battle and the defendant
bears a heavy burden." United States v. Wallace,
212 F.3d 1000, 1003 (7th Cir. 2000). In reviewing
the defendant’s sufficiency of the evidence
claim, "[w]e consider the evidence in the light
most favorable to the government, drawing all
reasonable inferences in its favor." United
States v. Frazier, 213 F.3d 409, 416 (7th Cir.
2000). As an appellate court, we will not reweigh
the evidence presented or second-guess the jury’s
credibility determinations. See United States v.
Alcantar, 83 F.3d 185, 189 (7th Cir. 1996)
("Questions of witness credibility are reserved
for the jury, and its assessment will not be
second-guessed by an appellate panel."); United
States v. Hubbard, 22 F.3d 1410, 1415 (7th Cir.
1994). "’Only when the record contains no
evidence, regardless of how it is weighed, from
which the jury could find guilt beyond a
reasonable doubt, may an appellate court overturn
the verdict.’" United States v. Lundy, 809 F.2d
392, 396 (7th Cir. 1987); see also Jackson v.
Virginia, 443 U.S. 307, 319 (1979) (stating that
the test for the sufficiency of the evidence is
"whether . . . any rational trier of fact could
have found the essential elements of the crime
beyond a reasonable doubt") (emphasis in
original).
Initially, we want to emphasize that the
evidence presented at trial was clearly
sufficient to establish that the defendant’s
participation in Onaro’s drug trafficking
activities was more substantial than the kind of
buyer-seller relationship that this Court has
rejected as the basis for a conspiracy charge.
See United States v. Lechuga, 994 F.2d 346, 349
(7th Cir. 1993) (en banc) (holding that evidence
of a mere buyer-seller relationship does not
support a conspiracy charge). As early as
February 16, 1998, more than a month before the
heroin at issue was mailed to the United States,
the defendant mentioned his relationship with
Onaro to Agent Thomas and alluded to the proposed
heroin deal. The defendant admitted of his
ongoing relationship with Onaro during subsequent
conversations with DEA agents when he stated that
he knew "David" and that he had been working with
him, and Onaro’s willingness to allow the
defendant to sell the drugs on consignment
reflects the existence of a prior and ongoing
relationship of trust, a fact which can be
evidence of a conspiracy, see United States v.
Ferguson, 35 F.3d 327, 331 (7th Cir. 1994)
("[E]vidence of providing [drugs] ’up front’ may
establish the existence of a conspiracy . . .
because it indicates cooperation and trust rather
than an arm’s length retail-type sale."). This
evidence is sufficient for a rational jury to
find that the defendant both agreed to
participate in the relevant heroin transaction
and assisted in that transaction, and we
therefore reject the defendant’s sufficiency of
the evidence claim insofar as he contends that he
participated in the transaction only as a buyer
of the heroin once it reached the United States.
The fact that the government established the
defendant’s participation in the heroin
transaction as more than a buyer is significant,
but the defendant does not focus on that aspect
of the crimes of conviction. Rather, the
defendant’s sufficiency of the evidence challenge
centers on the state of mind element of the crime
of importation. As the defendant correctly points
out, both the conspiracy charge and the
government’s aiding and abetting theory of
liability for importation require a showing of
specific intent. See United States v. Andujar, 49
F.3d 16, 20 (1st Cir. 1995) (stating that a
conspiracy conviction requires both "’intent to
agree and intent to commit the substantive
offense’") (quoting United States v. Garcia, 983
F.2d 1160, 1165 (1st Cir. 1993)); United States
v. Labat, 905 F.2d 18, 23 (2d Cir. 1990) (noting
that aiding and abetting requires specific intent
to bring about the commission of a crime). In
order for the jury to find the defendant guilty
of importation, the government must establish
that the defendant knew that the drugs in
question originated outside the United States.
See Seventh Circuit Federal Jury Instructions:
Criminal 392-93 cmt. (1999) ("Although the
statute itself contains no intent requirement,
the cases also make clear that the statute is a
specific intent statute which requires the
government to prove both that the defendant
knowingly imported the substance in question and
that the defendant knew the substance was a
controlled substance.") (citing cases). According
to the defendant, it is his knowledge of the
imported nature of the drugs that the government
failed to establish at trial.
It is clear that the government has the burden
of demonstrating beyond a reasonable doubt that
the defendant knew the drugs were imported.
However, the government need not establish the
elements of the conspiracy and importation
charges through direct evidence in order to
satisfy its burden of proof. See United States v.
Pagan, 196 F.3d 884, 889 (7th Cir. 1999)
("Conspiracy . . . may be proved entirely by
circumstantial evidence."); United States v.
Coleman, 179 F.3d 1056, 1061 (7th Cir. 1999)
(stating that an individual’s guilt under an
aiding and abetting theory "’may be established
by circumstantial evidence’") (quoting United
States v. McKneely, 69 F.3d 1067, 1072 (10th Cir.
1995)). Rather, the government may establish the
existence of a conspiracy, and the defendant’s
involvement in importing heroin, "through
circumstantial evidence and any reasonable
inferences drawn therefrom involving the
defendant[’s] relationship, overt acts, and
overall conduct." United States v. Castillo, 148
F.3d 770, 774 (7th Cir. 1998).
Contrary to the defendant’s assertions regarding
the sufficiency of the evidence as to his
knowledge of the imported nature of the drugs,
there is circumstantial evidence from which a
rational jury could conclude that the defendant
knew that the heroin in question originated in
Thailand. The defendant made several calls to
Agent Thomas to discuss various aspects of the
heroin transaction, and the content of these
calls indicates an awareness of both the details
of Onaro’s drug trafficking activities and
knowledge of Onaro’s intent to ship drugs from
Thailand to the United States. More
significantly, the defendant referred to
conversations that he had with Onaro while Onaro
was in Thailand and the defendant himself
admitted that when Onaro first contacted him he
knew that Onaro was mailing drugs to the United
States from Thailand. The defendant further knew
that most of the principals in this heroin
transaction lived and operated out of Thailand.
Against this factual backdrop, we cannot conclude
that the evidence presented at trial was
insufficient to establish that the defendant knew
that the heroin he took possession of in the
United States originated in Thailand. This
evidence, taken together with the testimony and
evidence indicating the defendant’s involvement
in the heroin transaction, is sufficient for a
rational trier of fact to conclude that the
defendant conspired to import heroin and imported
heroin./1 Accordingly, we reject the defendant’s
sufficiency of the evidence claim.
B. The Jury Instructions
The defendant next contends that the district
court erred in instructing the jury on the
necessary elements of the crimes of conspiracy to
import heroin and importing heroin. As we stated
in connection with the defendant’s sufficiency of
the evidence claim, both conspiracy and
importation require a showing of specific intent.
See Andujar, 49 F.3d at 20 (stating that a
conspiracy conviction requires both "’intent to
agree and intent to commit the substantive
offense’") (quoting Garcia, 983 F.2d at 1165);
Seventh Circuit Federal Jury Instructions:
Criminal 392-93 cmt. (emphasizing that
importation is a specific intent crime); see also
Labat, 905 F.2d at 23 (noting that aiding and
abetting requires specific intent to bring about
the commission of a crime). According to the
defendant, the instruction given on the
importation offense underlying both of his
charged crimes did not adequately express the
requirement that the jury find that he knew the
drugs he took possession of were imported.
The district court gave the following jury
instruction on the importation charge: "To
sustain [the charge of importation of controlled
substances] against the defendant in Count 3 of
the indictment, the Government must prove the
following propositions: First, that the defendant
imported heroin into the United States from any
place outside thereof; and, second, that the
defendant knew the substance he possessed was a
controlled substance." Although this instruction
is modeled on the Seventh Circuit’s pattern
instruction for a charge under 21 U.S.C. sec.
952(a), see Seventh Circuit Federal Jury
Instructions: Criminal 392, the defendant
requested that the jury be explicitly informed
that in order to convict the defendant of
importation it had to find that the defendant
knew that the heroin in question originated
outside the United States. According to the
defendant, such an instruction was necessary
because his theory of defense was that although
he possessed the heroin once it reached the
United States, he was not aware it had been
shipped from Thailand. If the jury believed this
defense, and had any reasonable doubt as to the
defendant’s knowledge of the imported nature of
the drugs, it would have been required to acquit
on both the importation and conspiracy charges.
See id. at 392-93 cmt.
Although we believe that the district court’s
reliance on our pattern instruction was
understandable, there are circumstances where the
Seventh Circuit pattern instruction on a given
charge will be inadequate. According to the
defendant, the central problem with the jury
instructions in this case is that the defendant’s
theory of defense--that he possessed the drugs
once they arrived in the United States but did
not know that they were imported--is not
reflected in the pattern instruction on
importation. See United States v. Douglas, 818
F.2d 1317, 1322 (7th Cir. 1987) (holding that a
model jury instruction can be inadequate in
circumstances where the "case . . . involves a
theory of defense that is not reflected in that
instruction"). We have previously held that
"’[t]he defendant in a criminal case is entitled
to have the jury consider any theory of the
defense which is supported by law and which has
some foundation in the evidence, however tenuous.’"
United States v. Boucher, 796 F.2d 972, 975 (7th
Cir. 1986) (quoting United States v. Grimes, 413
F.2d 1376, 1378 (7th Cir. 1969)). However, a
criminal defendant’s entitlement to a theory-of-
defense instruction is limited to circumstances
where: (1) "the defendant proposes a correct
statement of the law;" (2) "the defendant’s
theory is supported by the evidence;" (3) "the
defendant’s theory of defense is not part of the
charge;" and (4) "the failure to include an
instruction on the defendant’s theory of defense
in the jury charge would deny the defendant a
fair trial." Douglas, 818 F.2d at 1320-21.
The defendant’s burden of demonstrating that he
was entitled to an instruction on his theory of
defense is further complicated by the applicable
standard of review. In circumstances where the
defendant makes a proper objection, we review a
district court’s decision regarding the language
of a proposed jury instruction for an abuse of
discretion, see Spiller v. Brady, 169 F.3d 1064,
1066 (7th Cir. 1999), and its decision not to
instruct on a theory of defense de novo, see
United States v. Meyer, 157 F.3d 1067, 1074 (7th
Cir. 1998). At trial, the defendant did contest
the government’s proposed instruction and
requested that the district court instruct the
jury that, in order to convict on the conspiracy
and importation charges, it had to determine that
the defendant knew the imported nature of the
heroin. However, "[m]erely submitting
instructions is not sufficient" to preserve an
objection. Douglas, 818 F.2d at 1320. Rather, "a
defendant must object, on the record, to the
judge’s refusal to tender the defendant’s
instructions, and must clearly state the reasons
for his or her objections." Id. (citing United
States v. Green, 779 F.2d 1313, 1320 n.6 (7th
Cir. 1985)); see also Fed.R. Crim.P. 30. Here,
the defendant’s counsel did not object on the
record at the time the district court refused to
give the defendant’s proposed instruction, but
rather accepted the district court’s
representation that the importation instruction
contained an implicit knowledge requirement and
confirmed that he could argue a lack of knowledge
to the jury. As a consequence of his failure to
specifically object to the district court’s
refusal to offer an explicit theory-of-defense
instruction, the defendant has not adequately
preserved his objection to the district court’s
instructions and we therefore review the
defendant’s challenge under the more deferential
plain error standard. Douglas, 818 F.2d at 1320.
As we noted above, there are circumstances
where a pattern instruction will be insufficient
and where a criminal defendant is entitled to an
explicit jury instruction encapsulating his
theory of defense. Id. at 1322. However, as we
also stated, a defendant is only entitled to such
an instruction when his theory of defense is not
already adequately captured by the proffered
instructions. Id. at 1321. The district court
refused to explicitly instruct the jury that the
defendant had to know of the imported nature of
the heroin because the court believed that this
specific intent element was already contained in
the pattern instruction on importation. The
district court’s statement to this effect was
apparently accepted by defense counsel, and
nothing in the record indicates that the
defendant was precluded from presenting his
theory of defense to the jury. Although we
believe that the district court might have been
better served by making the disputed mental state
element of importation explicit in the
instruction, the defendant’s failure to properly
preserve his objection renders our review
deferential. Absent a more persuasive showing
that the pattern instruction on importation did
not adequately inform the jury of all the
elements of the crime of importation, we cannot
conclude that the district court plainly erred in
rejecting the defendant’s proposed instruction in
favor of the pattern instruction.
Our conclusion that the defendant has not
demonstrated his entitlement to an explicit jury
instruction on his theory of defense is bolstered
by the defendant’s inability to show that any
alleged failure of the district court to give
such an instruction deprived him of a fair trial.
See id. at 1321 (stating that a defendant is only
entitled to a theory-of-defense instruction if
the failure to include such an instruction "would
deny the defendant a fair trial"). The district
court not only delivered an instruction which
both parties accepted on the ground that it
contained an implied specific intent requirement,
but defense counsel was clearly informed that he
could argue to the jury that the defendant did
not know that the drugs originated in a foreign
country. Defense counsel made the most of this
opportunity by focusing important parts of his
cross-examinations, as well as a significant part
of his closing argument, on the defendant’s
alleged lack of knowledge that the drugs came
from Thailand. Moreover, while the importation
instruction lacked a specific mental state
requirement, both the indictment, which was read
and provided to the jury, and the aiding and
abetting instruction indicated that the defendant
had to knowingly aid in the importation of drugs.
See Trident Investment Management, Inc. v. Amoco
Oil Co., 194 F.3d 772, 780 (7th Cir. 1999)
(recognizing that "[n]o instructions are perfect,
but the rule is that we will not find reversible
error in jury instructions if, taken as a whole,
they fairly and accurately inform the jury about
the law"). Under these circumstances, we are not
convinced that the failure of the district court
to give an explicit theory-of-defense instruction
prejudiced the defendant. Because we conclude
that the defendant has not demonstrated that the
importation charge given to the jury did not
include his theory of defense, and because the
defendant has not shown that any oversight that
may have occurred in that regard denied him a
fair trial, we cannot overturn the district
court’s decision regarding the jury instructions.
C. The Defendant’s Right to Counsel
The defendant also argues that the district
court erred in refusing to provide the defendant
a lawyer at his sentencing hearing. It is well-
established that "[t]he Sixth Amendment
guarantees the right to counsel during all
’critical stages of the prosecution’" United
States v. Veras, 51 F.3d 1365, 1369 (7th Cir.
1989) (quoting United States v. Wade, 388 U.S.
218, 238 (1967)), and that this right is
applicable during sentencing hearings, see United
States v. Ayala-Rivera, 954 F.2d 1275, 1279 (7th
Cir. 1992). However, a defendant may waive his
right to counsel through his own contumacious
conduct. See United States v. Fazzini, 871 F.2d
635, 642 (7th Cir. 1989). In this case, the
district court refused to appoint the defendant
counsel at his sentencing hearing because the
court found that the defendant, through his own
conduct, had already frustrated four attempts by
the district court to provide the defendant with
representation and had thereby waived his right
to counsel. Whether the defendant has waived his
right to counsel is a practical determination
that depends on the particular facts and
circumstances of each case, "including the . . .
conduct of the accused." McQueen v. Blackburn,
755 F.2d 1174, 1177 (5th Cir. 1985). We review
the district court’s refusal to appoint counsel
for an abuse of discretion, see McNeil v. Lowney,
831 F.2d 1368, 1371 (7th Cir. 1987), and we will
not reverse the district court’s decision "unless
it would result in fundamental unfairness
impinging on due process rights," Maclin v.
Freake, 650 F.2d 885, 886 (7th Cir. 1981).
In order to determine whether the defendant did
knowingly and voluntarily waive his Sixth
Amendment right to counsel through his own
conduct, we must review the facts surrounding the
district court’s decision not to appoint the
defendant counsel for purposes of his sentencing
hearing. The defendant was originally represented
by a public defender, Luis Galvan, but Galvan
withdrew from this representation because he felt
that he did not have a relationship of trust with
the defendant and because he regarded the
defendant’s attitude as abusive and antagonistic.
Michael Falconer was then appointed to represent
the defendant, but the defendant later requested
that Falconer be dismissed as his defense counsel
because of Falconer’s allegedly poor performance
and abusive attitude. In response to the
defendant’s request for his dismissal, Falconer
informed the district court that the defendant
would not cooperate with him, and stated that the
defendant seemed to feel that he was entitled to
an unlimited number of attorneys. During this
discussion of Falconer’s representation, the
defendant first raised the possibility that
Galvan could be reappointed and then decided that
he wanted to represent himself. The district
court advised against proceeding pro se and
ordered Falconer to remain as "shadow counsel."
The district court also strongly encouraged the
defendant to consult Falconer for assistance on
the case.
On October 20, 1998, the district court allowed
Falconer to withdraw from his representation of
the defendant and reappointed Galvan. However,
after serving as the defendant’s counsel for
approximately three months, Galvan again
requested to withdraw. In support of this
request, Galvan stated that the defendant accused
him of "working in conjunction with the
government to prejudice [the defendant’s]
interests" and of lying to him during their
consultations. The district court granted
Galvan’s motion to withdraw and appointed Robert
Clarke as counsel for the defendant. Clarke
represented the defendant at trial but, after the
defendant was convicted, the defendant filed a
complaint against Clarke with the Attorney
Registration and Disciplinary Commission. Clarke
then sought to withdraw as the defendant’s
counsel and the district court granted Clarke’s
motion. Following Clarke’s withdrawal from the
case, the district court asked Carl Clavelli to
represent the defendant and delayed the
defendant’s sentencing date in order to give
Clavelli time to prepare for the hearing. The
defendant’s sentencing date was set for August
19, 1998.
Before the defendant was sentenced, Clavelli
filed a motion with the district court seeking to
withdraw as the defendant’s counsel. During the
hearing on this motion, Clavelli informed the
district court that he and the defendant had
differences of opinion about the case that could
not be resolved. At this point, the district
court informed the defendant that it was not
going to appoint another lawyer to represent the
defendant and that the defendant had the choice
of proceeding with Clavelli as his lawyer or
proceeding pro se. The defendant resolutely
refused to continue with Clavelli as counsel,
alleging that Clavelli had treated him abusively
and physically attacked him. The district court
then granted Clavelli’s motion to withdraw and
both the defendant and the district court
proceeded under the assumption that the defendant
was representing himself./2 When the defendant
requested new counsel at his sentencing hearing,
the district court refused to appoint any further
counsel on the ground that the defendant had been
uncooperative with his previous counsel in an
attempt to drag out his case and in order to
provide a basis for appeal. The district court
further noted that the defendant had been given
the opportunity to proceed with counsel, but
through his own conduct had made that impossible.
The district court therefore refused to delay
sentencing and the defendant was sentenced
without the assistance of counsel.
If a criminal defendant seeks to waive his
Sixth Amendment right to counsel, he must do so
knowingly and intelligently. See Johnson v.
Zerbst, 304 U.S. 458, 464-65 (1938). However, "it
is not necessary that the defendant verbally
waive his right to counsel; so long as the
district court has given a defendant sufficient
opportunity to retain the assistance of appointed
counsel, defendant’s actions which have the
effect of depriving himself of appointed counsel
will establish a knowing and intentional choice."
Fazzini, 871 F.2d at 642. The district court
appointed four separate lawyers for the
defendant, including one of the four twice. All
of these lawyers either requested to withdraw
because of the defendant’s lack of cooperation or
were discharged by the defendant, and the
district court clearly advised the defendant of
the difficulties and dangers of proceeding
without the assistance of counsel, see Faretta v.
California, 422 U.S. 806, 835 (1975) (stating
that a criminal defendant "should be made aware
of the dangers and disadvantages of self-
representation"). Furthermore, the district court
warned the defendant that it would not appoint
another lawyer after Clavelli and gave the
defendant the option to avail himself of counsel
or to proceed pro se. See United States v. Moya-
Gomez, 860 F.2d 706, 739 (7th Cir. 1988) ("A
criminal defendant may be asked to choose between
waiver and another course of action as long as
the choice presented to him is not
constitutionally defective."). In circumstances
such as these, where the defendant’s lack of
counsel was caused by his own refusal to
cooperate with the counsel appointed for him and
where the defendant was made aware of the
possible consequences of his refusal to
cooperate, the district court’s decision not to
appoint new counsel for the defendant does not
constitute an abuse of discretion. See, e.g.,
United States v. Harris, 2 F.3d 1452, 1455 (7th
Cir. 1993) (finding voluntary and informed waiver
where the defendant refused to cooperate with his
lawyers and was told that no substitute counsel
would be appointed for him).
D. The Alleged Brady Violation
The defendant next contends that the district
court erred in refusing to grant him a new trial
based on the government’s alleged failure to
comply with its obligation to turn over
exculpatory material under Brady v. Maryland, 373
U.S. 83, 87 (1963). According to the defendant,
the government violated the requirements of Brady
when it failed to disclose to the defendant
transcripts of statements made by his co-
defendants, Onaro and Chiawan, during their pleas
colloquies. The defendant argues that the
statements made by Onaro and Chiawan at these
plea colloquies were material and exculpatory and
that the district court should have granted the
defendant a new trial based on the government’s
suppression of these statements. We review the
district court’s denial of the defendant’s motion
for a new trial for an abuse of discretion. See
United States v. Kozinski, 16 F.3d 795, 818 (7th
Cir. 1994).
In order for the defendant to show that he is
entitled to a new trial because of a Brady
violation, he must demonstrate that: "(1) the
prosecution suppressed evidence; (2) the evidence
allegedly suppressed was favorable to the
defense; and (3) the evidence was material to an
issue at trial." United States v. Walton, 217
F.3d 443, 450 (7th Cir. 2000); see United States
v. Hartbarger, 148 F.3d 777, 786 (7th Cir. 1998).
"Evidence is material only if there exists a
’reasonable probability’ that its disclosure to
the defense would have changed the result of the
trial." United States v. Silva, 71 F.3d 667, 670
(7th Cir. 1995); see also Kyles v. Whitley, 514
U.S. 419, 434 (1995) (stating that the
"touchstone of materiality is a ’reasonable
probability’ of a different result"). Put another
way, the government’s failure to disclose
information that the defendant alleges was
favorable to the defense constitutes a
constitutional violation only if the "supression
[of the evidence] undermines confidence in the
outcome of the trial." United States v. Bagley,
473 U.S. 667, 677 (1985); see United States v.
Asher, 178 F.3d 486, 496 (7th Cir. 1999) ("The
test for materiality of the evidence under Brady
is whether, in the absence of the evidence, the
defendant received a fair trial resulting in a
verdict worthy of confidence.").
The defendant’s allegations of a Brady violation
focus on the transcripts of testimony given by
Onaro and Chiawan during their plea colloquies on
September 8, 1998. During the course of both of
these colloquies, the government read into the
record an extensive factual basis which indicated
that both Onaro and Chiawan had participated in
a conspiracy to ship drugs from Thailand to the
United States and that the defendant was a part
of that scheme. However, at the point Onaro was
asked if he disagreed with any portion of the
facts recited by the government, he responded:
"Lucky and the woman, we did not conspire. I
didn’t know Lucky before. Lucky don’t know me
before." In addition, when Chiawan was asked if
her role in the conspiracy was "to get the heroin
and give it to [the defendant]," she denied this
role and stated that she "was to come to obtain
the heroin" and that "[t]hey asked me to come and
pick up the money." According to the defendant,
these statements by Onaro and Chiawan were
exculpatory and material and should have been
disclosed to the defendant.
Although when viewed in isolation the statements
cited by the defendant are arguably favorable to
the defense, a contextual reading of those
statements undermines the defendant’s claim as to
the exculpatory nature of the evidence. Chiawan’s
statements simply clarified her own role in the
conspiracy and did not bear directly on the
defendant’s participation. Onaro’s statements did
partially describe the defendant’s role in the
conspiracy, but the statements indicated only
that Onaro did not know the defendant prior to
the beginning of the conspiracy. In light of the
ambiguity reflected in these statements, and the
overall inculpatory nature of the transcripts, it
is not clear that the evidence allegedly
suppressed was the kind of material subject to
disclosure under Brady. See United States v.
Hamilton, 107 F.3d 499, 509 (7th Cir. 1997)
(stating that the government need not disclose
"every possible shred of evidence that could
conceivably benefit the defendant"); see also
United States v. Agurs, 427 U.S. 97, 109-10
(1976) ("The mere possibility that an item of
undisclosed information might have helped the
defense, or might have affected the outcome of
the trial, does not establish ’materiality’ in
the constitutional sense.").
Even if the statements made by Onaro and
Chiawan could be construed as favorable evidence
that was suppressed by the government, the
defendant’s claim of error in regard to the
district court’s refusal to grant the defendant
a new trial faces a more substantial obstacle.
When the allegedly exculpatory statements are
read in context and in light of the record as a
whole, it is clear that the undisclosed
transcripts were not material to the defendant’s
case. The transcripts themselves, as well as the
factual basis prepared by the government to which
both Onaro and Chiawan assented on the record,
provide strong inculpatory evidence that the
defendant participated in a conspiracy to import
heroin from Thailand. Moreover, in light of the
evidence presented at trial, there is little
probability that the introduction of the disputed
transcripts would have changed the outcome. See
United States v. Olson, 846 F.2d 1103, 1118 (7th
Cir. 1988) (indicating that the materiality of a
particular piece of evidence must be evaluated in
relation to the strength of the other evidence
adduced at trial). Because the defendant has
failed to show that the transcripts he now argues
should have been disclosed to the defense were
both exculpatory and material, we conclude that
the government had no obligation to turn those
transcripts over to the defendant and that the
district court did not abuse its discretion in
denying the defendant’s motion for a new trial.
E. The Indictment
The defendant finally challenges the sufficiency
of the indictment returned against him by the
grand jury. The Fifth Amendment provides that
"[n]o person shall be held to answer for a
capital, or otherwise infamous crime, unless on
a presentment or indictment of a Grand Jury . .
. ." U.S. Const. amend V. The defendant contends
that the indictment issued in this case was
defective because it lacked both the signature of
the grand jury foreperson and that of an attorney
for the government./3 According to the
defendant, the failure of the government to prove
that the indictment contained these signatures
renders the indictment void, and consequently
deprives the district court of jurisdiction to
try him for his offenses and makes his trial and
conviction a nullity. We review the sufficiency
of the indictment de novo. See Frank v. United
States, 914 F.2d 828, 830 (7th Cir. 1990).
"Because of [the defendant’s] failure to raise
objections to the indictment prior to trial, his
indictment should be upheld unless it is so
defective that it does not, by any reasonable
construction, charge an offense for which the
defendant is convicted." United States v. James,
923 F.2d 1261, 1266 (7th Cir. 1991) (internal
quotation omitted).
The Federal Rules of Criminal Procedure state
that indictments are to be signed by both the
foreperson of the grand jury and by an attorney
for the government. See Fed.R.Crim.P. 6(c) ("The
foreperson . . . shall sign all indictments.");
Fed.R.Crim.P. 7(c)(1) ("[The indictment] shall be
signed by the attorney for the government.").
However, precedent of the Supreme Court and of
this Court indicate that both of these signatures
are technical deficiencies that are not
necessarily fatal to the indictment. See United
States v. Wright, 365 F.2d 135, 137 (7th Cir.
1966) ("[T]he signature of the prosecuting
attorney is not an essential part of the
information; nor is improper signing of the
instrument a defect such as to invalidate it.");
Hobby v. United States, 468 U.S. 339, 345 (1984)
("Even the foreman’s duty to sign the indictment
is a formality, for the absence of the foreman’s
signature is a mere technical irregularity that
is not necessarily fatal to the indictment.")
(citing Frisbie v. United States, 157 U.S. 160,
163-165 (1895)). Because the alleged failure of
the grand jury foreperson and the attorney for
the government to sign the indictment would be
mere technical deficiencies, and because the
defendant does not allege that the indictment did
not adequately inform him of the charges against
him or otherwise prejudice his defense, the
defendant’s challenge to the sufficiency of the
indictment is without merit.
III. Conclusion
Having found no reversible error in the
district court’s decisions, we AFFIRM the
defendant’s convictions and sentence.
/1 In addition to arguing that the evidence was
insufficient for a jury to find him guilty of
conspiracy to import heroin, the defendant
contends that the government failed to present
sufficient evidence of his participation in the
conspiracy to permit the introduction at trial of
hearsay statements made by the defendant’s
alleged co-conspirators. Specifically, the
defendant objects to the admission of a tape-
recorded conversation between Onaro and
undercover government agents on March 10, 1998,
as well as a recording of a conversation between
Onaro and a confidential source made on March 31,
1998. We review the district court’s
determination that the defendant was a member of
a conspiracy for purposes of the admission of co-
conspirator statements for clear error. See
United States v. Rodriguez, 975 F.2d 404, 411
(7th Cir. 1992).
Ordinarily, a decision as to the admissibility
of co-conspirator statements is made according to
a pre-trial proffer. See United States v.
Santiago, 582 F.2d 1128 (7th Cir. 1978),
overruled on other grounds by Bourjaily v. United
States, 483 U.S. 171 (1987). In order to justify
the admission of a co-conspirator’s statement
under Rule 801(d)(2)(E) of the Federal Rules of
Evidence, the government must prove "by a
preponderance of the evidence . . . that (1) a
conspiracy existed, (2) the defendant and the
declarant were members of the conspiracy, and (3)
the statement(s) sought to be admitted were made
during and in furtherance of the conspiracy."
Rodriguez, 975 F.2d at 406. In this case, the
defendant does not question the government’s
Santiago proffer, but rather contends that the
evidence adduced at trial did not establish by a
preponderance of the evidence that he was a
member of the conspiracy charged. However, in
light of our conclusion that the evidence was
sufficient to connect the defendant to the
alleged conspiracy, we find this challenge to the
admission of Onaro’s statements to be meritless.
/2 When a criminal defendant decides to proceed pro
se, it is generally advisable for the district
court to appoint "shadow counsel" to be available
to assist the defendant if needed. See Hall v.
Washington, 106 F.3d 742, 751 (7th Cir. 1997).
Although the district court did ask Falconer to
remain as the defendant’s shadow counsel after
the defendant initially decided to proceed pro
se, the district court did not take any similar
action at the time it allowed Clavelli to
withdraw. While the district court is not
required to appoint shadow counsel, and there is
no allegation that the district court’s failure
to do so in this instance resulted in an unfair
process, we urge district courts to appoint
shadow counsel in circumstances where a defendant
decides to proceed pro se. Such an action not
only ensures the availability of counsel to
defendants who decide that proceeding without the
assistance of counsel is not in their best
interest, but also avoids the potential for delay
created by untimely assertions of the right to
counsel.
/3 Although the defendant contends that the original
indictment lacked the signatures of the grand
jury foreperson and an attorney for the
government, the indictment itself has apparently
been lost and is not part of the record on
appeal. However, for the purposes of appeal, we
will assume arguendo that the indictment in fact
lacked the relevant signatures as the defendant
claims.