United States v. Oreye, James ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3577
United States of America,
Plaintiff-Appellee,
v.
James Oreye,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 434--Milton I. Shadur, Judge.
Argued January 16, 2001--Decided August 24, 2001
Before Flaum, Chief Judge, and Posner and
Coffey, Circuit Judges.
Posner, Circuit Judge. Oreye was
convicted by a jury of federal drug
offenses and sentenced to 168 months in
prison. His appeal presents questions
about his Sixth Amendment right to
counsel.
Oreye was originally indicted under the
name "Emmanual Richson," and when first
arraigned was represented by an appointed
counsel named Saltzman, to whom he denied
that he was Richson; but he could present
no evidence of this at the time and the
judge decided to let the indictment
stand. A superseding indictment charged
Oreye under both names (and others).
Insisting that he was not Richson, that
Richson was not merely an alias but a
real human being and the true author of
the crimes with which Oreye was charged,
Oreye, bypassing his lawyer, filed a
motion to dismiss the indictment, in
which he argued that the jury had
intended to indict Richson, not him. It
turned out later that there is an
Emmanual Richson who is not Oreye, but it
also turned out that Oreye uses aliases
and there is considerable doubt whether
his real name is Oreye. The judge told
him he couldn’t litigate pro se while
represented by counsel. Oreye became
dissatisfied with Saltzman, doubtless be
cause the latter did not share Oreye’s
growing obsession with the Richson
question, and so the judge appointed a
substitute counsel, Shanin.
Six business days before the trial was
scheduled to start, Shanin filed a motion
to withdraw as Oreye’s lawyer, explaining
that his client was refusing to cooperate
with him. The district judge promptly
convened a hearing at which he explained
to Oreye that Saltzman and Shanin were
both able lawyers, and he blamed Oreye’s
dissatisfaction with them on his
obsession with the Richson question. The
judge decided that appointing a new
lawyer for Oreye would require granting a
continuance that would be prejudicial to
Oreye’s codefendants, who were to be
tried with him (though eventually all but
one pleaded guilty). Shanin was prepared
to go to trial on schedule. He explained
that he had filed the motion to withdraw
only because Oreye and he had an
irreconcilable difference of opinion over
how to conduct the case--no doubt Oreye
wanted to put the emphasis on his not
being Richson, which, even if true, was
tangential to the charges against him.
The judge gave Oreye a choice between
staying with Shanin, finding another law
yer who would be ready to go to trial on
schedule, and representing himself. The
judge reminded Oreye that it would be
difficult for him to represent himself,
but added that if Oreye decided to go the
pro se route the court would appoint
Shanin as standby counsel; and the judge
explained what that meant. Oreye asked
the judge whether he could get a fair
trial with standby counsel, and the judge
said yes.
Oreye never said he wanted to proceed
pro se, but a defendant can waive his
right to counsel through conduct as well
as words. See United States v. Irorere,
228 F.3d 816, 827-28 (7th Cir. 2000);
United States v. Harris, 2 F.3d 1452,
1454-55 (7th Cir. 1993); United States v.
Fazzini, 871 F.2d 635, 641-42 (7th Cir.
1989). As in Irorere, Oreye was told that
if he dismissed Shanin and didn’t find a
substitute at his own expense, he would
have to proceed pro se. See 228 F.3d at
827-28. If you’re given several options,
and turn down all but one, you’ve
selected the one you didn’t turn down.
Granted, some cases from other circuits
require evidence of misconduct to
establish waiver by conduct. E.g., United
States v. Goldberg, 67 F.3d 1092, 1100-01
(3d Cir. 1995); United States v. Moore,
706 F.2d 538, 540 (5th Cir. 1983). But,
with all due respect, we think these
cases are wrong. The question of waiver
is one of inference from the facts. As a
matter both of logic and of common sense,
as we have said, if a person is offered
a choice between three things and says
"no" to the first and the second, he’s
chosen the third even if he stands mute
when asked whether the third is indeed
his choice. This is provided the offer is
clear, see Cain v. Peters, 972 F.2d 748,
750 (7th Cir. 1992), but it was here.
And having thus "decided" to go the pro
se route Oreye received a bonus because
Shanin was far more active at trial than
the usual standby counsel. He examined
and cross-examined a number of the
witnesses, participated actively in the
instructions conference, raised issues
and objections, and even gave a closing
argument--as did Oreye, so there were two
closing arguments on his behalf. They
even both cross-examined one of the
government’s witnesses. There was
additional cross-examination by the
codefendant’s counsel and no suggestion
that the codefendant was trying to pin
the rap on Oreye; and so in effect this
witness was cross-examined three times to
the benefit of Oreye. And Oreye was
acquitted on two counts. The evidence of
his guilt of the other counts was
overwhelming; a baker’s dozen of lawyers
could not have gotten him an acquittal on
those counts.
He argues nevertheless that the judge
denied him his Sixth Amendment right to
the assistance of counsel. The judge
should, he says, either have appointed a
third lawyer (and if necessary postponed
the trial or severed Oreye’s trial from
that of his codefendants) or have
explained to him the downside of self-
representation in greater detail. The
first suggested alternative is clearly
wrong. A defendant has no right to
indefinite delays while he tries on new
lawyers unless he has a reason for
dissatisfaction with the old. United
States v. Irorere, supra, 228 F.3d at
827-28; United States v. Harris, supra, 2
F.3d at 1454-55; United States v.
Fazzini, supra, 871 F.2d at 641-42.
Although Oreye had no good reason to be
dissatisfied with Saltzman, the judge
gave him a new lawyer. He had no reason
to be dissatisfied with Shanin either,
and in fact they worked harmoniously
together at the trial with Shanin in the
standby role (in fact in a larger role,
as we’re about to see). Given the fact
that an indigent defendant has a right to
competent counsel but not a right to
counsel of his choice, Caplin & Drysdale,
Chartered v. United States, 491 U.S. 617,
624 (1989); United States v. Messino, 181
F.3d 826, 831 (7th Cir. 1999), the judge
was fully within his rights in refusing
to appoint a third lawyer for Oreye.
But because the Supreme Court has held,
for better or for worse, that a sane
individual has a constitutional right to
represent himself in a criminal
proceeding, Faretta v. California, 422
U.S. 806, 819-20 (1975); United States v.
Avery, 208 F.3d 597, 601 (7th Cir. 2000)
(this is also a statutory right of
federal criminal defendants, such as
Oreye, 28 U.S.C. sec. 1654), the district
judge could not just tell Oreye that he
would have to go to trial with Shanin as
his counsel. He had to give Oreye a
choice between Shanin and self-
representation. And he did so.
But was it an informed choice? Oreye
complains that the judge did not
adequately explain to him the downside of
self-representation. Oreye is a foreigner
who has been in the United States for
only a few years, whose English is poor
(though not so poor that he required a
translator), and who has no known
previous experience with the criminal
justice system (though with his
propensity for aliases, who can be
sure?). The judge mentioned
"difficulties" of self-representation but
did not dilate on them. Oreye argues that
by failing to explain the downside
adequately, the judge prevented him from
making a knowing waiver of his right to
counsel and therefore took away that
right.
We do not find this a persuasive
syllogism. The judge did not deny Oreye
the assistance of counsel. On the
contrary, he tried to persuade him to
stick with Shanin. His fault if there is
one was not going into sufficient detail
about the perils of self-representation.
We’re not sure it was a fault, or at
least a serious, a fatal, fault, because
if he had dwelled on those perils in
truly loving detail he would stand
accused of having infringed Oreye’s right
to self-representation. The judge placed
in Judge Shadur’s position is on the
razor’s edge in assisting a defendant to
make an informed choice between
representation by counsel with whom the
defendant is irrationally dissatisfied
and self-representation. If the judge
exaggerates either the advantages of
being represented or the disadvantages of
self-representation, he will be accused
of having put his thumb on the scale and
prevented the defendant from making an
informed choice. United States v.
Sandles, 23 F.3d 1121, 1127 (7th Cir.
1994). And therefore, as we said in
United States v. Hill, 252 F.3d 919, 925,
928 (7th Cir. 2001), we "doubt that any
list [of Faretta warnings] can be
mandated" or that the defendant can be
given "a deep understanding of how
counsel could assist him. . . . All a
judge can do as a practical matter--all a
judge need do as a legal matter--is
ensure that the defendant knows his
rights and avoids hasty decisions." Cf.
United States v. Goad, 44 F.3d 580, 587-
89 (7th Cir. 1995); United States v.
Berkowitz, 927 F.2d 1376, 1384 (7th Cir.
1991). "Section 1654 and Faretta require
courts to respect a litigant’s demand for
self-determination at the most critical
moment in the criminal process. That
right is not honored if judges must
depict self-representation in such
unremittingly scary terms that any
reasonable person would refuse." United
States v. Hill, supra, 252 F.3d at 928-
29.
Although the warnings given by the
district judge here were rather
perfunctory, we think they satisfied the
standard of Hill, with due regard for the
razor’s edge problem. The judge mentioned
"difficulties" of self-representation
twice during the May 17 hearing, and
during the May 20 hearing pointed out to
Oreye that he was unfamiliar with "trial
procedures" and "legal procedures" and
explained some of the complexities of
those procedures to him.
But even if we were wrong about the
(minimum) adequacy of the judge’s
explanations, we would doubt whether
there had been a denial of counsel here,
because Shanin, while labeled standby
counsel, was functionally counsel,
period. We are mindful of the many cases
which hold or imply that appointment of
standby counsel does not satisfy the
Sixth Amendment, if the defendant wants
to be represented. E.g., United States v.
Proctor, 166 F.3d 396, 406 (1st Cir.
1999); United States v. Salemo, 61 F.3d
214, 221-22 (3d Cir. 1995). But we do not
submit gracefully to the tyranny of
labels. If the defendant’s counsel
provides all the assistance required by
the Sixth Amendment, the fact that he is
called "standby counsel" would not
violate the amendment. Cf. United States
v. Morrison, 153 F.3d 34, 55 (2d Cir.
1998); United States v. Schmidt, 105 F.3d
82, 90 (2d Cir. 1997). Shanin played so
active a role in the trial that, had
Oreye not as it were shared counsel
duties with him, there would be little
basis for a finding of ineffective
assistance of counsel. In effect, though
not in name, Oreye both had counsel and
represented himself. This is what is
called "hybrid representation"--and is
forbidden. Cain v. Peters, supra, 972
F.2d at 750. But it is not forbidden in
the interest of the defendant. In part it
is forbidden in the interest of the
prosecution, because "it allows a
defendant to address the jury, in his
capacity as counsel, without being cross-
examined, in his capacity as a
defendant." United States v. Oakey, 853
F.2d 551, 553 (7th Cir. 1988). There are
systemic concerns as well: hybrid
representation complicates and prolongs a
trial, to the detriment of jurors and the
judicial system because there is a queue
waiting for attention. So when a
defendant is represented by two lawyers,
and the concern expressed in Oakey is
thus not a factor, the court still
insists that there be only one cross-
examination, one closing argument, etc.
And we don’t allow hybrid representation
on appeal even though the time for
testimony and thus for cross-examination
is long over, because hybrid
representation confuses and extends
matters. But for present purposes the
important thing is that, as the quotation
from Oakey brings out, many litigants
would very much like the two bites at an
apple that such representation enables.
And that’s just what Oreye got, which
gave him unjustified advantages over the
average defendant. We are disinclined to
fixate on the label "standby counsel" and
reverse a judgment that not only was
amply supported by the evidence and
untainted by any mistakes in
representation at trial, but capped a
trial in which the defendant who
complains about denial of counsel had
more representation than criminal
defendants are entitled to.
Affirmed.