United States v. Breland, Walter ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-1691, 03-1692, & 03-2196
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WALTER BRELAND, KATREL THOMAS,
and ANDRE VAUGHN,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Southern District of Indiana, Evansville Division.
No. EV 02-CR-0005-Y/H—Richard L. Young, Judge.
____________
ARGUED DECEMBER 5, 2003—DECIDED JANUARY 30, 2004
____________
Before FLAUM, Chief Judge, and MANION and WILLIAMS,
Circuit Judges.
WILLIAMS, Circuit Judge. Walter Breland, Katrel
Thomas, and Andre Vaughn appeal convictions stemming
from their drug distribution activities. Breland challenges
the introduction of testimony containing out-of-court state-
ments and the admission of the drugs, money, and weapon
seized during his arrest. Thomas and Vaughn challenge the
introduction and use of wiretap evidence and the district
court’s sentencing determination regarding the quantity of
drugs for relevant conduct. Thomas also challenges the
district court’s use of one of his prior convictions at sentenc-
2 Nos. 03-1691, 03-1692, & 03-2196
ing. Because we find no error with respect to any of defen-
dants’ arguments, we affirm.
ANALYSIS
A. Walter Breland
In October 2001, Evansville police officers were con-
ducting surveillance of a residence where they suspected
drug dealing was taking place. In the early hours of October
31, 2001, one officer, Philip Luecke, stopped and questioned
Trent Ferguson, a known drug trafficker, and found over
$1,000 on his person. When Officer Luecke interviewed him,
Ferguson stated that a “black male with a bald head” was
selling cocaine and marijuana from the same residence that
the officers had under surveillance. When Officer Luecke
and two other officers spotted Walter Breland, a black male
with a bald head, standing in front of the residence, Officer
Luecke said to him, “Police, I want to talk to you.” Breland
immediately ran from the porch area of the residence,
across the street and between some houses, where he hid
behind a large bush. When Officer Luecke began to pursue
Breland, he rose, tossed a plastic bag containing cocaine
over a fence, and charged Officer Luecke brandishing a
firearm. Officer Luecke struck Breland with a flashlight,
which caused Breland to drop the gun, but Breland contin-
ued to run from the police. He was caught and arrested
minutes later by other officers who conducted a search
incident to the arrest and found $2,000.
Breland was charged with conspiracy to possess with in-
tent to distribute and possession with the intent to distrib-
ute, carrying a firearm during and in furtherance of a drug
trafficking offense, and being a felon in possession of a
firearm. He was convicted on all counts except the conspir-
acy charge. On appeal, he challenges the admission of the
evidence seized during his arrest and the introduction of
Officer Luecke’s testimony about Ferguson’s statement.
Nos. 03-1691, 03-1692, & 03-2196 3
1. Suppression of the Arrest Evidence
Breland appeals the district court’s admission of the
drugs, money, and firearm seized at the time of his arrest.
He argues that the evidence should have been suppressed
because the police seized him within the curtilage of his
home and did so without reasonable suspicion or probable
cause. When reviewing appeals from denials of motions to
suppress, we review legal issues de novo and questions of
fact for clear error. United States v. Quintanilla, 218 F.3d
674, 677 (7th Cir. 2000). We disagree with Breland’s as-
sertions and find his argument to be without merit.
First, when Officer Luecke initially addressed Breland
while Breland was on or near his front porch by saying
“Police, I want to talk to you,” Breland was not seized; if
anything, Officer Luecke was attempting to engage in a
consensual encounter (remember, Breland immediately
started to run). See United States v. Mendenhall, 446 U.S.
544, 552-54 (1980); United States v. Felix-Felix, 275 F.3d
627, 632 (7th Cir. 2001). Even if Officer Luecke’s actions
could be considered an attempted Terry stop,1 because
Breland matched Ferguson’s description of a person who
1
See Terry v. Ohio, 392 U.S. 1 (1968). In Terry, the Supreme
Court held that an officer may, consistent with the Fourth
Amendment, conduct a brief, investigatory stop when the officer
has a reasonable, articulable suspicion that criminal activity is
afoot. 392 U.S. at 30. “While ‘reasonable suspicion’ is a less de-
manding standard than probable cause and requires a showing
considerably less than preponderance of the evidence, the Fourth
Amendment requires at least a minimal level of objective jus-
tification for making the stop.” Illinois v. Wardlow, 528 U.S. 119,
123 (2000) (citing United States v. Sokolow, 490 U.S. 1, 7 (1989)).
“The officer must be able to articulate more than an ‘inchoate and
unparticularized suspicion or “hunch” ’ of criminal activity.” Id. at
123-24 (quoting Terry, 392 U.S. at 27).
4 Nos. 03-1691, 03-1692, & 03-2196
was allegedly dealing drugs from the residence where
Breland was seen by police, the officers had reasonable
suspicion to believe Breland was engaged in criminal ac-
tivity and were entitled to conduct a Terry stop to briefly
investigate. See Illinois v. Wardlow, 528 U.S. 119, 123-24
(2000); Felix-Felix, 275 F.3d at 634. Once Breland fled from
the police, the officers undoubtedly had reasonable suspi-
cion to pursue Breland in order to conduct a Terry stop.
Wardlow, 528 U.S. at 124. Finally, after Breland threw the
bag of drugs over the fence, and charged Officer Luecke
with a firearm in his hand, the police had probable cause to
arrest him and search his person. See United States v.
Feliciano, 45 F.3d 1070, 1072-73 (7th Cir. 1995). Therefore,
the district court did not err in denying Breland’s motion to
suppress the evidence seized at his arrest.
2. Admission of Out-of-Court Statement
Breland also appeals the introduction of Officer Luecke’s
testimony concerning his conversation with Ferguson, in
which Officer Luecke relayed that Ferguson told him about
a “black male with a bald head” dealing drugs from the
residence under surveillance. Breland argues that this tes-
timony was inadmissible hearsay that should have been
excluded at trial, and, alternatively, claims error in the
district court’s failure to give a limiting instruction regard-
ing the jury’s permissible use of the statement.
“Hearsay is a statement, other than one made by the
declarant while testifying at trial, offered in evidence to
prove the truth of the matter asserted.” United States
v. Linwood, 142 F.3d 418, 424-25 (7th Cir. 1998) (citing Fed.
R. Evid. 801(c)). “Whether a statement is hearsay and, in
turn, inadmissible, will most often hinge on the purpose for
which it is offered.” Id. “ ‘If . . . an extrajudicial utterance is
offered, not as an assertion to evidence the matter asserted,
Nos. 03-1691, 03-1692, & 03-2196 5
but without reference to the truth of the matter asserted,
the hearsay rule does not apply.’ ” Lee v. McCaughtry, 892
F.2d 1318, 1324 (7th Cir. 1990) (emphasis omitted) (quoting
6 J. H. WIGMORE, EVIDENCE § 1766, at 250 (1976)). We
review district court rulings on hearsay objections for an
abuse of discretion. United States v. Amerson, 185 F.3d 676,
681 (7th Cir. 1999).
This court has repeatedly upheld the introduction of out-
of-court statements when offered as background informa-
tion to put an officer’s actions in context because they are
not being offered for the truth of the matter asserted. See
United States v. Linwood, 142 F.3d at 424-25; United States
v. Sanchez, 32 F.3d 1002, 1005 (7th Cir. 1994); United
States v. Martinez, 939 F.2d 412, 415 (7th Cir. 1991). Here,
Officer Luecke’s testimony about Ferguson’s statement was
not offered to prove the truth of the matter asserted—that
a “black male with a bald head . . . [was] selling cocaine and
marijuana” from the relevant residence—but rather was
offered to explain why Officer Luecke approached Breland
since he was standing outside of the residence and matched
Ferguson’s description. “The case law of this Circuit leaves
no doubt that this is a non- hearsay purpose.” Linwood, 142
F.3d at 425 (citing Sanchez, 32 F.3d at 1005).
With respect to Breland’s challenge regarding the neces-
sity of a limiting instruction, Breland’s defense counsel
never actually requested an instruction at trial, nor did she
submit a proposed instruction on this issue or otherwise
object to the district court’s final instructions.2 Therefore,
2
Defendants’ brief claims that defense counsel requested a cau-
tionary or limiting instruction and that the district court erred in
refusing to give such an instruction. Defense counsel conceded at
oral argument, however, that she never formally requested a lim-
(continued...)
6 Nos. 03-1691, 03-1692, & 03-2196
plain error review applies. United States v. Irorere, 228 F.3d
816, 825 (7th Cir. 2000); Linwood, 142 F.3d at 422. Because
there was substantial evidence to support Breland’s
conviction for possession with intent to distribute—namely,
the quantity of drugs seized at his arrest3 coupled with the
amount of money found on his person— the district court’s
failure to provide a limiting instruction regarding the jury’s
permissible use of Ferguson’s statement did not amount to
plain error.4
B. Katrel Thomas and Andre Vaughn
Around the same time as the Evansville Police were
conducting surveillance on Breland’s residence, the Drug
Enforcement Agency (DEA) became interested in a certain
cellular telephone number that was subscribed to by
Breland. On October 26, 2001, the district court granted the
government’s application to conduct wiretap surveillance of
communications involving that phone number. The wiretap
surveillance ultimately revealed evidence which incrimi-
2
(...continued)
iting instruction at trial and did not propose a limiting instruction
at the instruction conference.
3
“Intent to distribute can be inferred from the possession of a
quantity of drugs larger than needed for personal use.” United
States v. Maholias, 985 F.2d 869, 879 (7th Cir. 1993); see also
United States v. Turner, 93 F.3d 276, 288 (7th Cir. 1996).
4
As a practical matter, district judges would be well served to
ask defense counsel if they would like the court to give a caution-
ary or limiting instruction whenever evidence is admitted for a
limited purpose. Counsel can preserve objections to admissibility
while still agreeing to a limiting instruction. Whether counsel
wants a limiting instruction given is, of course, a matter of trial
strategy.
Nos. 03-1691, 03-1692, & 03-2196 7
nated Katrel Thomas and Andre Vaughn. They were
charged and convicted of conspiracy to possess with intent
to distribute and possession with the intent to distribute.
Before the district court and now on appeal, defendants
challenge the introduction and use of the wiretap evidence
and the district court’s sentencing determination regarding
the quantity of drugs for relevant conduct. Thomas also
challenges the district court’s use at sentencing of one of his
prior convictions.
1. Suppression of the Wiretap Surveillance Evidence
In approving the government’s application to conduct
wiretap surveillance, the district court exercised its discre-
tion to require the government to submit progress reports
to the court detailing its progress and need for further
surveillance.5 The district court’s order required the gov-
ernment to submit progress reports “on or about the tenth,
twentieth, and thirtieth days following the Date of this
Order . . . showing what progress has been made toward
achievement of the authorized objectives and the need for
continued interception.” The government’s wiretap surveil-
lance ran from October 26 until November 14, with the last
recorded phone calls on November 10. The government filed
5
When a district court authorizes wiretap surveillance, the
court’s order
may require reports to be made to the judge who issued
the order showing what progress has been made toward
achievement of the authorized objective and the need for
continued interception. Such reports shall be made at
such intervals as the judge may require.
18 U.S.C. § 2518(6). This court has held that requiring a progress
report for continued surveillance is within the discretion of the
district court. In re DeMonte, 674 F.2d 1169, 1174 (7th Cir. 1982).
8 Nos. 03-1691, 03-1692, & 03-2196
its tenth day progress report on November 5, the tenth day
after the district court’s October 26 order.6 The government
never filed a report on the twentieth day after the district
court’s order, November 15, because it discontinued the
wiretap surveillance on November 14 and filed a sealing
application with the district court on that day.
Thomas and Vaughn argued that the government was re-
quired to file its twentieth day report on November 14 and
its failure to do so violated both the court’s order and the
statutory requirement that “[s]uch reports shall be made at
such intervals as the judge may require.” Therefore,
defendants asserted, suppression of the wiretap evidence
was required. The district court found the government suf-
ficiently complied with the court’s order, given its discon-
tinuation of the wiretap surveillance and filing of a sealing
application, and rejected defendants’ motion to suppress.
We review a district court’s decision to admit evidence
obtained from wiretap surveillance for an abuse of discre-
tion. United States v. Ceballos, 302 F.3d 679, 683 (7th Cir.
2002). Putting aside the date controversy,7 the district court
had discretion to require the progress reports in the first
6
The report covered the first ten days of surveillance from
October 26 through November 4.
7
Despite quoting the district court’s order in their brief, de-
fendants proceeded to mischaracterize the order both in their brief
and at oral argument. Contrary to defendants’ assertion, the
district court’s order did not require that a progress report be filed
“on the 20th day” of surveillance (which would be November 14 if
surveillance started, as it appears it did, shortly after the court
issued the authorization order on October 26). Rather, the order
required the report to be filed “on or about . . . the twentieth day[
] . . . following the Date of this Order.” (Emphasis added.) So if a
“twentieth day” report was due at all, it was due on or about
November 15, the twentieth day following the date of the order.
Nos. 03-1691, 03-1692, & 03-2196 9
place, In re DeMonte, 674 F.2d 1169, 1174 (7th Cir. 1982),
and to find that a twentieth day report was not necessary
in light of the government’s sealing application which
indicated that the wiretap surveillance had been discontin-
ued. Cf. United States v. Iannelli, 477 F.2d 999, 1002 (3d
Cir. 1973) (“The sufficiency of these reports was a matter
for the supervising judge, and the breadth of his discretion
must be viewed in light of the fact that he could under 18
U.S.C. § 2518(6) have dispensed with progress reports
entirely.”). Moreover, even if the district court had found
that the government failed to properly comply with its
progress report order, suppression of the wiretap evidence
is not the automatic remedy, and such a decision is simi-
larly within the district court’s discretion. See United States
v. Scafidi, 564 F.2d 633, 641 (2d Cir. 1977) (“While these
reports should have been timely filed, the sanction for
failure to do so is surely not automatic suppression of the
tapes.”); see also DeMonte, 674 F.2d at 1174 (“Even if the
appellant’s claim that the reports were not timely filed is
true, that does not automatically render the surveillance
invalid.”).8 Because the district court was satisfied that the
government sufficiently complied with its order, we cannot
8
While defendants are correct that 18 U.S.C. § 2518(10)(a)(iii)
provides that “[a]ny aggrieved person . . . may move to suppress
the contents of any . . . communication intercepted pursuant to
this chapter, or evidence derived therefrom, on the grounds
that . . . the interception was not made in conformity with the order
of authorization or approval,” nothing in the statute requires the
district court to grant such a motion. See Scafidi, 564 F.2d at 641
(emphasis added). Indeed, the statute goes on to provide that
“[t]he judge, upon the filing of such motion by the aggrieved
person, may in his discretion make available to the aggrieved
person or his counsel for inspection such portions of the inter-
cepted communication or evidence derived therefrom as the judge
determines to be in the interests of justice.” Id. § 2518(10)(a)
(emphasis added).
10 Nos. 03-1691, 03-1692, & 03-2196
say it was an abuse of discretion for the court to deny
defendants’ motion to suppress the wiretap evidence.
2. Admission of Wiretap Transcripts
Thomas and Vaughn also challenge the district court’s
decision to admit transcripts from wiretap surveillance
recordings of phone calls in which they discussed and
planned their joint purchase and resale of cocaine, and their
efforts to convert certain recent shipments of powder
cocaine into crack cocaine. They also challenge the district
court’s decision admitting the transcripts with their names
affixed to identify the speakers.
This court has stated that district courts have wide
discretion in determining whether to allow juries to use
written transcripts as aids in listening to audiotape re-
cordings. See United States v. Keck, 773 F.2d 759, 766 (7th
Cir. 1985). We have previously permitted transcripts to be
admitted at trial and used by the jury during their delib-
erations when the underlying tapes are actually played
during the trial (as was the case here). See United States v.
Magana, 118 F.3d 1173, 1184 (7th Cir. 1997); United States
v. Crowder, 36 F.3d 691, 697 (7th Cir. 1994); United States
v. Camargo, 908 F.2d 179, 183 (7th Cir. 1990); United
States v. Puerta Restrepo, 814 F.2d 1236, 1242 (7th Cir.
1987). Furthermore, the jury was clearly informed that if
there was any variation between the tapes and the tran-
scripts, they were to rely solely on the tapes. See Final
Instruction No. 46; see also Crowder, 36 F.3d at 697; Puerta
Restrepo, 814 F.2d at 1242.
As for naming Thomas and Vaughn on the transcripts
based on DEA Special Agent Michael Kress’s identification
of their voices, we have also permitted speakers’ names to
be included on transcripts based on the lay testimony of a
Nos. 03-1691, 03-1692, & 03-2196 11
person familiar with the speakers’ voices, see United States
v. Briscoe, 896 F.2d 1476, 1491 (7th Cir. 1990), and Agent
Kress identified their voices on the tapes based on his
personal interviews with the defendants. Under these cir-
cumstances, the district court did not abuse its discretion in
permitting their names to be affixed to the transcripts.
3. Calculation of Drug Quantity at Sentencing
Thomas and Vaughn also challenge the district court’s
calculation of drug quantity in determining relevant con-
duct for sentencing purposes. The district court’s relevant
conduct finding for Thomas (708 grams of crack cocaine)
and Vaughn (672 grams of crack cocaine) was based on the
expert testimony of Agent Kress interpreting the drug
dealing terminology used on wiretapped telephone conver-
sations in which Thomas instructed Vaughn to cook 18
ounces of powder cocaine into 24 ounces (roughly 672
grams) of crack cocaine and sell each ounce for $1,000. For
Thomas, the district court added an additional 36 grams of
crack cocaine found by DEA agents when they executed
a search warrant at an Evansville residence and subse-
quently arrested Thomas (who was present at the time of
the search). In contrast, Thomas and Vaughn argue that the
wiretap surveillance provides evidence showing that they
only discussed converting nine grams of powder cocaine into
12 ounces of crack cocaine (or 340 grams).9
Relevant conduct determinations are factual findings that
we review with great deference to the district court, revers-
ing only in the case of clear error. United States v. Carmack,
100 F.3d 1271, 1276 (7th Cir. 1996). “Clear error review
9
At sentencing, defendants argued their relevant conduct was
only 9 ounces of crack cocaine.
12 Nos. 03-1691, 03-1692, & 03-2196
means that the district court’s decision will not be reversed
unless after reviewing the entire record we are left with a
definite and firm conviction that a mistake has been commit-
ted.” Id. (citing United States v. Flores-Sandoval, 94 F.3d
346, 349 (7th Cir. 1996)). For relevant conduct, the govern-
ment is required to prove the amount of drugs attributable
to a defendant by a preponderance of the evidence. United
States v. Ofcky, 237 F.3d 904, 908 (7th Cir. 2001). Proving
relevant conduct by a preponderance of the evidence
requires showing that the conduct was “ ‘more likely than
not,’ i.e., probable or likely rather than just possible.”
United States v. Shannon, 110 F.3d 382, 401 n.10 (7th Cir.
1997) (en banc) (citing United States v. Saulter, 60 F.3d 270,
280 (7th Cir. 1995)).
Here, the district court based its relevant conduct finding
on wiretap evidence in which Thomas and Vaughn describe
drug processing and distributing two different shipments of
18 ounces of cocaine, and evidence against Thomas seized
during a valid search. In making its finding, the court
specifically disregarded the trial testimony of Donald
McGuire, a convicted drug dealer previously arrested by the
government during several narcotics transactions, who
testified about extensive drug processing and distribution
activities he had engaged in with and on behalf of both
Thomas and Vaughn. That Thomas and Vaughn claim a
different interpretation of the wiretap evidence does not
advance the ball, for under the clearly erroneous standard,
“if two permissible views exist, the fact-finder’s choice
between them cannot be clearly erroneous.” United States
v. Hardamon, 188 F.3d 843, 848 (7th Cir. 1999) (citation
and quotation marks omitted).
Thomas and Vaughn’s argument is further undermined
by the fact that the 12 ounces of crack cocaine figure they
suggested (based on cooking 9 ounces of powder cocaine)
fails to account for the other 9 ounces of powder cocaine
that they admit to discussing in the same conversation but
Nos. 03-1691, 03-1692, & 03-2196 13
which they claim they did not intend to cook into crack
cocaine. See Appellants’ Brief at 15. Nor does their figure
account for the additional 18 ounces of powder cocaine,
which they concede there was evidence that they had
acquired sometime before November 10 (nine ounces of
which was ultimately seized by agents after an individual,
Golden Sutton, threw it out a car window when he was
stopped by police shortly after purchasing it from Thomas).
See Appellants’ Brief at 15-16. Under these circumstances,
we cannot find clear error in the district court’s relevant
conduct determination.
C. Admission of Thomas’s Prior Conviction
Thomas also challenges the use at sentencing of one of his
prior state convictions that was not disclosed by the
government before trial in response to his Federal Rule of
Criminal Procedure 16 request for pretrial disclosure of his
criminal record. Prior to trial, Thomas requested disclosure
of his prior criminal record and the government supplied
the National Crime Information Center (NCIC) report that
it had at that time, which included two prior misdemeanor
convictions in Indiana but omitted another in Ohio. Given
his criminal history Thomas would have qualified under the
safety valve provisions of the guidelines for a sentence
reduction. However, in advance of sentencing, the United
States Probation Department provided its Presentence
Investigation Report (PSR) which included the Ohio
conviction. Thomas argues that because he did not receive
pretrial notice of the Ohio conviction, it should have been
excluded for sentencing purposes as a sanction under Rule
16(d)(2) and his criminal history level should be lowered.
Federal Rule of Criminal Procedure 16 provides that
“[u]pon a defendant’s request, the government must furnish
the defendant with a copy of the defendant’s prior criminal
record that is within the government’s possession, custody,
14 Nos. 03-1691, 03-1692, & 03-2196
or control if the attorney for the government knows—or
through due diligence could know—that the record exists.”
Fed. R. Crim. P. 16(a)(1)(D). One reason defendants seek
pretrial disclosure of their prior criminal record is so they
may attempt to take advantage of the “safety valve”
provisions in the Sentencing Guidelines, see U.S.S.G. §
5C1.2,10 by reducing their criminal history points through
post-conviction relief on previous sentences (as Thomas did
with one of his Indiana convictions).
While the government admittedly has no explanation for
why the Ohio conviction was not in the pretrial report it
provided Thomas, Rule 16 does not mandate that the dis-
trict court must suppress or exclude the prior conviction as
a sanction for a Rule 16 violation. Indeed, Rule 16(d)(2)
provides that the district court “ ‘may,’ but is not required
to, impose sanctions including ordering disclosure, granting
a continuance, prohibiting admission of the evidence, or any
other response deemed necessary. This rule does not
require the suppression of evidence for a discovery viola-
tion. These sanctions are left to the discretion of the court,
and we will not second guess its decision.” United States v.
Jackson, 51 F.3d 646, 651-52 (7th Cir. 1995) (citations
10
The guidelines allow a defendant to be sentenced according to
the applicable guideline range, without regard to any statutory
minimum sentence, if the defendant meets five criteria listed in
§ 5C1.2: (1) the defendant must not have more than one criminal
history point; (2) the defendant must not have used violence or
credible threats of violence or possessed a firearm or other
dangerous weapon in connection with the offense; (3) the offense
must not have resulted in death or serious bodily injury to any
person; (4) the defendant must not have been an organizer, leader,
manager, or supervisor of others in the offense; and (5) the
defendant must have truthfully provided the government with all
information and evidence he had concerning the offense or
offenses that were part of the same course of conduct or of a
common scheme or plan.
Nos. 03-1691, 03-1692, & 03-2196 15
omitted); see also United States v. De La Rosa, 196 F.3d
712, 716 (7th Cir. 1999); United States v. Salerno, 108 F.3d
730, 743 (7th Cir. 1997).
Moreover, this court will not disturb a ruling on a motion
for Rule 16 sanctions absent a showing of prejudice, see
id., and a defendant is prejudiced under Rule 16 only
when he is unduly surprised and lacks an adequate op-
portunity to prepare a defense. See id. at 744. Here, we
cannot say Thomas was prejudiced by the government’s
failure to disclose his Ohio conviction before trial, because
defense counsel acknowledges that he received the PSR well
in advance of sentencing. Under these circumstances, he
could (and should) have, pursuant to Rule 16, asked for a
continuance of the sentencing procedures in order to seek
post-conviction relief for the Ohio conviction. See
Fed. R. Crim. P. 16(d)(2)(b).11 Accordingly, we do not find
that the district court abused its discretion in denying
Thomas’s motion to exclude the prior conviction for sen-
tencing purposes.
CONCLUSION
11
We are not persuaded by defense counsel’s argument that he
could not pursue post-conviction relief for Thomas’s Ohio convic-
tion because he is not licensed to practice law in Ohio. Counsel did
not explore or raise with the district court a request for leave to
obtain pro hac vice status in Ohio or to otherwise retain a possible
federal defender to represent his client in that state. He asserts
that the district court’s inexplicable denial of his costs in pursuing
successful post-conviction relief for one of Thomas’s Indiana
convictions precluded him from pursuing leave to pursue post-
conviction relief for the Ohio conviction. If counsel had at least
attempted to obtain such leave, and his request had been denied,
he might have had a more viable prejudice argument on appeal.
16 Nos. 03-1691, 03-1692, & 03-2196
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-30-04