United States v. Alejandro Campos-Rivera ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-3214
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALEJANDRO CAMPOS-RIVERA,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:18-CR-00823(1) — Matthew F. Kennelly, Judge.
____________________
ARGUED NOVEMBER 5, 2020 — DECIDED OCTOBER 7, 2021
____________________
Before SYKES, Chief Judge, and HAMILTON and SCUDDER,
Circuit Judges.
SYKES, Chief Judge. A grand jury indicted Alejandro
Campos-Rivera for unlawfully reentering the United States
after removal. See 8 U.S.C. § 1326(a). He was initially repre-
sented by an assistant federal public defender, but counsel
moved to withdraw at Campos-Rivera’s request based on an
irreconcilable conflict between the two. The motion was
granted, and a new lawyer was appointed.
2 No. 19-3214
Campos-Rivera then filed a half-dozen pro se motions
raising issues that his new attorney declined to pursue. The
district judge told him that he could not proceed pro se and
through counsel. Campos-Rivera asked the judge to dismiss
his attorney and appoint a third. The judge declined to do
so, explaining that a disagreement about motion strategy did
not justify the appointment of yet another attorney. The
judge gave Campos-Rivera a choice: move forward with his
current lawyer or proceed pro se. Campos-Rivera chose the
latter.
The judge then addressed and denied the pro se motions.
The case proceeded to a bench trial on stipulated facts, and
the judge found Campos-Rivera guilty. His appeal focuses
on the judge’s refusal to appoint a third lawyer and the
sufficiency of the evidence on the intent element of the
crime.
We affirm. The judge was right: a disagreement between
attorney and client over pretrial motions is not grounds for
the appointment of a new attorney. In any event, Campos-
Rivera validly waived his right to counsel; the judge con-
ducted a comprehensive waiver colloquy to ensure that the
decision was fully informed and voluntary. And Campos-
Rivera’s challenge to the sufficiency of the evidence fails for
two reasons. First, § 1326(a) is a general-intent crime. The
government need only prove that the defendant knowingly
reentered the United States, not that he intended to do so
unlawfully. The stipulated facts support an inference of
knowing reentry—indeed, that is the only reasonable infer-
ence here. Second, Campos-Rivera complains that the judge
failed to make a specific factual finding regarding the intent
element. But no such finding was necessary. In a bench trial,
No. 19-3214 3
a general finding of guilt suffices unless a party asks for
specific findings of fact. See FED. R. CRIM. P. 23(c). Campos-
Rivera did not make that request, so the judge’s general
finding of guilt sufficed.
I. Background
Campos-Rivera is a native and citizen of Mexico. In
January 2011 he was convicted of two state felonies in Kane
County, Illinois. He was removed in May 2012 but reentered
the country at some point thereafter and was apprehended
by immigration officials on October 19, 2018, in Wheaton,
Illinois. A federal grand jury issued a one-count indictment
charging him with illegal reentry in violation of § 1326(a).
At the initial appearance, a magistrate judge appointed
Assistant Federal Defender Daniel McLaughlin to represent
Campos-Rivera. About a month later, McLaughlin moved to
withdraw at Campos-Rivera’s request, citing irreconcilable
conflicts between the two. The district judge granted the
motion and appointed Robert Loeb, a private lawyer, to
replace McLaughlin.
Though represented by counsel, Campos-Rivera filed a
flurry of pro se motions to dismiss and a motion collaterally
attacking the underlying removal order. He also asked that
Loeb be removed and replaced by a certain federal defender.
At a status hearing, the judge informed Campos-Rivera that
he did not get to choose his own appointed counsel but
deferred ruling on any of the pro se motions until the gov-
ernment had a chance to respond. In the meantime, the
government tendered a proposed plea agreement, and
Campos-Rivera filed yet another pro se motion to dismiss.
4 No. 19-3214
At the next hearing, the judge inquired about the status
of Campos-Rivera’s motions and the state of his relationship
with Loeb. At a sidebar, the judge asked Loeb whether he
intended to pursue any of the pro se motions. Loeb respond-
ed:
I am not eager to adopt them. I can’t say that
they are frivolous. I am not going there. I am
weighing what I perceive as the chances of
success with an offer that we have, and I am
coming to my conclusions as to what is pru-
dent. … I don’t think Mr. Campos-Rivera nec-
essarily agrees with that. As to a bottom line, I
am not necessarily asking to get out. I am an
officer of the court, and I am willing to fulfill
that responsibility.
The judge asked Campos-Rivera if Loeb had explained his
reasons for not pursuing the motions. Campos-Rivera con-
firmed that he had. The judge told him that it was up to his
attorney to decide which motions to pursue and that no pro
se motions would be entertained while he was represented
by counsel.
The judge then gave Campos-Rivera the option of either
representing himself and pursuing his pro se motions or
accepting Loeb’s representation and forgoing the motions.
Campos-Rivera instead asked the judge to appoint another
lawyer who would adopt the motions. The judge replied:
“That’s not one of the options. You are already on your
second lawyer. I am not going to appoint you a third.”
Campos-Rivera chose to represent himself.
No. 19-3214 5
With that, the judge concluded the sidebar and conduct-
ed a thorough colloquy with Campos-Rivera to ensure that
his decision to represent himself was knowing and volun-
tary. Finding that it was, the judge permitted Campos-Rivera
to proceed pro se and appointed Loeb as standby counsel.
At the next hearing, the judge denied the pending pro se
motions. Campos-Rivera filed additional motions to dismiss;
those too were denied. Campos-Rivera then waived his right
to a jury trial, and the case proceeded to a bench trial on
stipulated facts (in lieu of a guilty plea, which under the
terms of the government’s offer would have required
Campos-Rivera to waive his right to appeal). Campos-Rivera
stipulated to the following facts: (1) he is a native and citizen
of Mexico with no lawful claim to U.S. citizenship or resi-
dence; (2) he was removed from the United States on or
about May 4, 2012, pursuant to a final order of removal
issued on April 23, 2012; (3) he reentered the United States
without the permission of the Secretary of Homeland Securi-
ty sometime after May 4, 2012, and before September 15,
2018; and (4) he was present and found by immigration
officials in Wheaton, Illinois, on October 19, 2018. No other
evidence was presented. The judge found Campos-Rivera
guilty.
II. Discussion
Now represented by counsel, Campos-Rivera seeks re-
versal on two grounds. He argues that the judge wrongly
refused to grant his request for a new lawyer to replace
Loeb. He also challenges the sufficiency of the evidence on
the intent element of the offense.
6 No. 19-3214
A. Substitution of Counsel
We review a denial of a request for appointment of new
counsel for an abuse of discretion. United States v. Volpentesta,
727 F.3d 666, 672–73 (7th Cir. 2013). Several factors are
relevant, including the timeliness of the request, the adequa-
cy of the judge’s inquiry into the claim of a conflict between
attorney and client, and “whether the conflict was so great
that it resulted in a total lack of communication preventing
an adequate defense.” Id. at 673. Reversal is not required
unless the denial of the motion amounted to a deprivation of
the defendant’s Sixth Amendment right to counsel. Id.There’s no dispute about the timeliness of Campos-
Rivera’s motion, so we begin with the second factor: the
adequacy of the judge’s inquiry into his conflict with his
lawyer. As just explained, attorney–client conflicts do not
require new counsel unless they prevent the presentation of
an adequate defense, United States v. Morrison, 946 F.2d 484,
498 (7th Cir. 1991), so the judge must ascertain the nature
and extent of the disagreement before ruling on the motion,
United States v. Zillges, 978 F.2d 369, 372 (7th Cir. 1992). The
judge did that here. He asked Loeb to explain his position on
the pro se motions, and he confirmed that Campos-Rivera
and Loeb had discussed the matter. He then correctly ex-
plained that Campos-Rivera could not file pro se motions
while represented by counsel, United States v. Cross, 962 F.3d
892, 899 (7th Cir. 2020), and that pretrial motions of this sort
are matters of strategy left to the attorney.
At each step of this inquiry, the judge ensured that
Campos-Rivera understood. Indeed, the judge was aware of
the reason for the conflict even before exploring the matter at
sidebar. Campos-Rivera had complained in one of his mo-
No. 19-3214 7
tions that Loeb would not pursue his preferred defense
strategy. See United States v. Bjorkman, 270 F.3d 482, 501 (7th
Cir. 2001) (considering a prehearing letter from the defend-
ant expressing grievances with his attorney).
In short, the judge’s inquiry was thorough and revealed
that Loeb and Campos-Rivera disagreed over motion strate-
gy but that Loeb was providing adequate representation.
That’s sufficient. See id. (concluding that the inquiry was
adequate where the judge learned the reasons for the conflict
rather than “elicit[ing] a general expression of satisfaction”
or “dismiss[ing] the matter in a conclusory fashion” (citation
and quotation marks omitted)).
Nor does the record show a total breakdown in commu-
nication between attorney and client. The two connected
regularly but simply disagreed about the best defense
strategy. Disagreements over case strategy are not grounds
for the appointment of new counsel. Volpentesta, 727 F.3d at
673–74. Reversible error occurs only when the conflict
between attorney and client “was so great that it resulted in
a total lack of communication preventing an adequate
defense.” Id. at 673; see also United States v. Ryals, 512 F.3d
416, 420 (7th Cir. 2008) (recognizing a total breakdown
where the attorney and the client were “standing apart from
each other with folded arms”). There is simply no evidence
of that level of breakdown here.
For these reasons, the judge did not abuse his discretion
in denying the request for a third attorney. To the extent that
Campos-Rivera is really objecting to the difficult choice he
had to make—either stick with Loeb or proceed pro se—the
objection is a nonstarter. We regularly uphold such ultima-
tums. E.g., Volpentesta, 727 F.3d at 676; United States v. Alden,
8 No. 19-3214
527 F.3d 653, 661 (7th Cir. 2008); United States v. Oreye,
263 F.3d 669, 670–71 (7th Cir. 2001); United States v. Irorere,
228 F.3d 816, 828 (7th Cir. 2000). Finally, Campos-Rivera does
not challenge the effectiveness of his waiver of counsel. Nor
could he. The judge engaged in a comprehensive colloquy to
ensure that Campos-Rivera’s decision to represent himself
was informed and voluntary.
B. Sufficiency of the Evidence
To convict Campos-Rivera of illegal reentry, the govern-
ment needed to prove that (1) he is an alien; (2) he was
previously removed pursuant to a valid order of removal;
and (3) he subsequently reentered the United States without
the permission of the Attorney General. § 1326(a). Illegal
reentry is a general-intent crime: the government must prove
that the defendant knowingly reentered the country but
need not prove that he intended to do so unlawfully. United
States v. Rea-Beltran, 457 F.3d 695, 702 (7th Cir. 2006).
Campos-Rivera faces a “nearly insurmountable” burden
to win reversal based on a challenge to the sufficiency of the
evidence. United States v. Dessart, 823 F.3d 395, 403 (7th Cir.
2016). We review the record in the light most favorable to the
prosecution and reverse only if the defendant demonstrates
that no rational trier of fact could have found him guilty
beyond a reasonable doubt. Id. Campos-Rivera cannot satisfy
this standard because he stipulated to the essential facts of
the crime: he is a native and citizen of Mexico with no claim
to U.S. citizenship or residency; he was previously removed
pursuant to a final removal order; and he reentered the
United States without the permission of the Department of
Homeland Security.
No. 19-3214 9
Campos-Rivera’s argument is limited to the intent ele-
ment of the crime, but his stipulation to reentering without
permission easily supports an inference that he reentered
knowingly. Indeed, that is the only reasonable inference that
can be drawn from the stipulated facts. Nothing in the
record suggests that his reentry was unknowing or involun-
tary.
Campos-Rivera nevertheless argues that because the
judge did not make a specific factual finding regarding
intent, the judgment must be reversed. Not so. In a bench
trial, the judge is not required to make specific factual find-
ings unless a party requests them. FED. R. CRIM. P. 23(c);
United States v. McBride, 724 F.3d 754, 759 (7th Cir. 2013).
Campos-Rivera did not request specific findings of fact, so
the judge’s general finding of guilt is enough.
AFFIRMED