United States v. Traeger, Andrew

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-2154
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANDREW TRAEGER,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 CR 697--Milton I. Shadur, Judge.
Argued April 1, 2002--Decided May 8, 2002
Before EASTERBROOK, DIANE P. WOOD, and
EVANS, Circuit Judges.
EVANS, Circuit Judge. It’s not a good
idea to rob banks. It’s particularly not
a good idea to rob banks when you have
distinctive physical characteristics--
like being bigger than the average
offensive tackle in the National Football
League. Not to mention wearing your hair
in a ponytail.
Andrew Traeger, whose nickname,
appropriately enough, is "Mountain,"
carries 350 pounds on his 6’5" frame. On
an October afternoon in 1997, Traeger
robbed the LaSalle Bank on Chicago’s
Ashland Avenue. A LaSalle teller gave
police a description of the robber. One
week later, Traeger tried to rob the
Great Bank on Chicago’s Western Avenue. A
report of that attempt, with a
description similar to the description of
the LaSalle robber, went to the police.
Less than 20 minutes later, alert police
officers saw Traeger, who fit the
description they had, walk past a bank
(the North Community Bank) in a strip
mall on Western Avenue. He was arrested a
few moments later. Subsequently, a two-
count indictment was returned charging
Traeger with the robbery and the attempt.
After the jury heard a compelling case
against him--including eyewitness
identifications from bank tellers--
Traeger was convicted on both counts.
Today we resolve his appeal from those
convictions.
A startling aspect of this case is that
Traeger was not sentenced until more than
2 years after he was convicted. In the
interim, he discharged his trial lawyer
and went through two more lawyers in a
failed effort to establish that his trial
lawyer rendered ineffective assistance.
When Traeger was finally sentenced, he
represented himself, and that is one of
the grounds he urges on this appeal--a
claim that he was denied his Sixth
Amendment right to counsel at sentencing.
Before getting to the issues on this
appeal, we want to note that the
condition of the transcript in this case
is as bad as any to reach this court in
recent memory. Its deplorable state
prompted the government to insert this
heads-up in a footnote at the beginning
of its brief:
The record on appeal consists of one
volume of pleadings and orders, cited as
"R." followed by a document number, and,
where appropriate, a page or paragraph
number within the document; and, as
supplemented, 17 volumes of transcripts.
The transcript of the trial is five
volumes, but each is separately
paginated, and the proceedings are not
transcribed in order--for instance, one
volume transcribes the parties’ opening
statements on March 23, 1999, followed by
the testimony of a single government
witness, followed by the closing
arguments given on March 25, 1999. The
trial transcripts are also erroneously
dated March 1998. The trial was in March
1999. However, each volume has a number
handwritten on the lower right corner of
the cover page. Citations to the trial
transcript are to that number, e.g.,
"132-1," followed by "Tr." and a page
number within that volume. Part of the
trial was not transcribed. The
transcripts of the first day of testimony
conclude with the district court
announcing a brief afternoon recess, with
testimony to resume at 3:25 p.m., and the
government informing the district court
that it had two more witnesses to call.
133-1Tr. 98-99. The government informed
the court reporter regarding this
problem, and twice the court reporter has
prepared transcripts of what he believed
was the testimony following the afternoon
break on March 23, 1999. Both are in
error. The first, number 136-1, is a
duplicate of Agent Joseph Stiller’s
testimony at a pre-trial suppression
hearing, 132-2Tr. The second, numbered
137-1, is a duplicate of Agent Stiller’s
testimony at trial on March 25, 1999, as
a defense witness. 133-3Tr.3-18. The
government has asked the court reporter
to continue looking for his notes for
March 23, 1999, following the afternoon
break. The other transcripts are of the
pre-trial suppression hearing and the
post-trial proceedings. They are also
cited by the number on the lower right
corner of the cover page, followed by
"Tr." and a page number. "DA" refers to
the appendix to defendant’s brief. The
government’s appendix is cited as "GA."
The first citation to materials contained
in an appendix is to both the record and
the appendix, and thereafter to the
appendix only.
And that’s not all. Headings in the
transcripts--indicating what witness’s
testimony is reported on a page--
arehopelessly screwed up. For instance,
we found the testimony of one of the
arresting officers (LoPresti) recorded
under the heading "Amin--recross" and the
testimony of Pauline Anderson recorded
under the heading "Goodman--redirect." If
there were awards for sloppiness, the
court reporter (who, out of charity, we
will not name) here would win first
prize.
Now on to Traeger’s appeal. One of the
government’s witnesses (Anderson) was a
prostitute who spent a week with Traeger
in a hotel (the Spa Motel)/1 after the
LaSalle robbery and before the attempt to
stick up the Great Bank. Traeger paid for
all lodging, food, beverages, and
services performed by Anderson with a
roll of bills he kept under a mattress or
in a sock. Anderson told the jury that at
the end of the week, while she was with
Traeger in a "lounge" having a beer, he
asked her to go into the Great Bank and
see "how far the tellers were from the
front door." She said he told her he
wanted this information because he
"needed a good bank to invest in." She
went. She returned shortly and gave
Traeger the requested information.
Anderson and Traeger then left the
lounge, hailed a cab, and took it less
than a block to the front door of the
Great Bank. Traeger got out, told the cab
driver to wait, and entered the bank.
Traeger returned in a few minutes, saying
it "wasn’t a good bank to invest in." The
cab then proceeded to the bank in the
strip mall on Western Avenue. Traeger got
out, returned, and before the cab could
leave, it was surrounded by police
officers.
So, what happened inside the Great Bank
while Anderson and the cab driver waited
outside? Well, according to Jade Lee, the
bank’s branch manager, Traeger (whom she
identified soon after he was arrested and
returned to the bank for a viewing by
tellers) approached her at a teller
window, announced a robbery, and said if
she gave him all the money she would not
be hurt. In a state of disbelief, Lee
replied, "I’m sorry?" Traeger then
repeated his demand for money, adding
that he had a gun and that Lee should not
press the alarm. Now panicking, Lee said,
"I really can’t," and backed away from
the counter. When Traeger started to
reach under his sweatshirt, telling Lee
to "come here," Lee said to the teller at
the adjacent window, "Sun Gang, get
down," and then Lee dropped to the floor.
At that point, Traeger left the bank
empty-handed. The offered defense to the
attempted robbery charge (in Traeger’s
lawyer’s closing argument--Traeger
himself wisely elected not to testify)
was that there was no intent to rob; it
was just a misunderstanding on Lee’s part
because her English was a little weak.
The first robbery, of the LaSalle Bank,
was more conventional. According to a
teller, Lorena Barajas, Traeger (whom she
identified in an FBI lineup 2 weeks after
his arrest) announced a robbery, told her
he had a gun, and said she should stay
calm, not press the alarm, and give him
the $20s, $50s, and $100s from her
drawer. She complied and Traeger left the
bank $5,840 richer. The defense to this
robbery was misidentification.
There was other evidence pointing to
Traeger’s guilt (like an incriminating
utterance to a police officer regarding
the LaSalle Bank robbery), but we think
we can safely stop now and consider the
arguments Traeger advances in the hope of
setting aside his convictions.
Traeger’s first claim concerns an
alleged Brady violation (Brady v.
Maryland, 373 U.S. 83 (1963)) involving
Ms. Anderson’s testimony, which he argues
was "outcome-determinative" on the Great
Bank charge. This characterization of
Anderson’s testimony is a bit of a
stretch. Sure, "lack of intent to rob"
was the "defense" to the charge, but
there was no defense evidence offered to
support it, only inferences as urged by
Traeger’s lawyer during closing argument.
Nevertheless, we agree that her testimony
was helpful to the government, so we’ll
look deeper into Traeger’s claim.
As we said, there was a bizarre 2-year
hiatus between Traeger’s conviction and
sentencing. A lot can happen over 2
years, and a lot did happen here. For one
thing, as we have already noted, Traeger
went through a number of lawyers. For
another, he testified on behalf of a chap
named Terrence McClurge, who was being
prosecuted by Stuart Fullerton, one of
the AUSAs who prosecuted Traeger’s case.
The McClurge trial took place 8 months
after Traeger was convicted. During his
cross-examination in the McClurge case,
Fullerton asked Traeger if he knew that
Anderson was granted immunity in exchange
for her testimony against him during his
trial.
When Traeger testified in McClurge’s
trial, he was being represented in post-
trial litigation by attorney Gerald
Collins, who was appointed to replace
Robert Clarke, the trial lawyer who was
discharged at Traeger’s request. Collins
had filed a motion for a new trial
alleging that Clarke rendered ineffective
assistance. Four months after the
McClurge trial, Collins filed a motion
for a new trial based on newly discovered
evidence, alleging that the government
withheld the fact that Anderson testified
under a grant of immunity. In response,
the government submitted Fullerton’s
affidavit and the transcript of Traeger’s
cross-examination at McClurge’s trial. In
the affidavit, Fullerton explained that
at the time of Traeger’s trial, he and
co-prosecutor Susan Haling thought
Anderson might be reluctant to testify
for fear of incriminating herself, and
that they were prepared to seek immunity
for her if that turned out to be the
case. As it was, however, the issue never
came up, and Anderson testified without
immunity. Fullerton said his statements
at the McClurge trial were based on a
faulty recollection of what had happened
8 months earlier.
The district court scheduled an
evidentiary hearing for March 31, 2000,
on the Anderson immunity issue (and
several other issues raised in a motion
filed by attorney Collins), but when the
day came, Traeger submitted a pro se
motion to have Collins dismissed from the
case, complaining that he misspelled some
names in his motion papers and referred
to Pauline Anderson as "Pauline
Goodman."/2 The pro se motion asked the
district court to treat Collins’ motion
as "null and void."
Collins was granted leave to withdraw,
and Traeger subsequently retained another
attorney, Ralph Meczyk, apparently using
money he received from his father to pay
a retainer. When that money ran out, just
a few months later, the district court
appointed Meczyk to act as Traeger’s
counsel. On February 16, 2001, Meczyk
filed a motion for a new trial, alleging
that Clarke rendered ineffective
assistance at trial, but the motion made
no reference to the earlier claim that
the government withheld evidence that
Anderson had been granted immunity.
Meczyk’s motion was denied without a
hearing on March 5, 2001.
The case was back in court on March 23,
2001, and Traeger announced that he
wanted Meczyk dismissed because he was
dissatisfied with his failure to raise
all the issues Traeger thought were
important. Meczyk was asked to comment
and said that, after reviewing all the
material in the case and consulting with
Traeger, he raised the issues he believed
had potential merit and declined to raise
the issues "that I did not feel I could
do in good conscience." Traeger himself
specifically requested that the district
court reset the evidentiary hearing that
had been set the year before (on the day
he fired Collins), at least for purposes
of taking evidence on the immunity issue,
but the district court refused to do so.
The court ruled that it had been prepared
to go forward with an evidentiary
hearing, depending on the issues raised
in Meczyk’s motion, but after reviewing
the motion it became clear that no
hearing was needed, and the motion was
decided on the papers. At this point, it
had been 2 years since the conclusion of
the trial, and the district court found
that Traeger had more than ample time to
raise, through counsel, any issues
pertaining to the fairness of his trial.
The district court was not willing to
delay sentencing any longer and set the
sentencing hearing for April 30, 2001,
but the court also invited Traeger to
file a motion for leave to submit
additional issues for review if he so
desired:
TRAEGER: If I could just amend--I am
just asking to amend Mr. Meczyk’s motion
with a couple of issues. I could do it
within a week. I could have it on your
desk within one week. And if it’s
meritless, then just deny it and let’s go
with the sentencing, your Honor. But I
have got to say I am begging you to
listen to this, Judge, you know.
THE COURT: Well, let me do this. I am
going to set the machinery in place for
purposes of sentencing. If you want to
tender something, it has to be in the
form of a motion for leave to do
something. If you want to do that, you
can do that. You know, one of I suppose
the inevitable consequences of any
lawyer, and that means any individual
filing a motion before a court for leave
to do something is that the court
inevitably reads it, you know. It has its
own effect. If you want to do that, then
you file something, but it has to be in
the form of asking leave to file a
renewed motion [for] a new trial. And
whatever you file, I will look at it.
[T]hat I will promise you, because partly
because I am compulsive, but also because
of the idea whenever anything is tendered
by definition in order to consider it, it
has to be read.
Traeger did not seek leave to submit any
additional issues in support of his
motion for a new trial.
Upon this record we have little trouble
concluding that Traeger waived his claim
that the government suppressed an
"immunity agreement" with Anderson. And
in waiving the issue, Traeger may have
unwittingly outsmarted himself. His
waiver is found in his expressly stated
disavowal of the motions filed by his
lawyer (Collins, who actually raised the
claim) and by his failure to renew the
claim when invited to do so in the
portion of the transcript we have just
quoted. So we have Traeger insisting that
Collins’ motion be treated as "null and
void" and nothing happening after that to
properly resurrect the issue. But even
were we to find that there was no waiver,
we think the issue--whether or not
Anderson received immunity--is one that
the court could determine without
impaneling a full-blown evidentiary
hearing. We think the district judge
could accept as reliable a representation
by an attorney such as the one Fullerton
made in his affidavit. What are the
chances that Fullerton, a government
attorney, would falsely swear under oath
that Anderson was not given immunity for
her testimony? Because the matter of the
immunity grant would be in a public
record somewhere, Fullerton would be
risking a lot--disbarment and criminal
prosecution for false swearing to mention
two--on a petty issue. We think it was
not unreasonable for the district judge
to assume that he wouldn’t do so by
filing a false affidavit. But we’ll add a
final nail to the coffin: Even if
Anderson had been given immunity, the
failure to disclose that fact to
Traeger’s trial lawyer would be harmless
error beyond a reasonable doubt. In fact,
we can’t imagine that a good lawyer would
want to spend too much time cross-
examining Anderson on whether she was
being spared criminal prosecution for her
role in casing the Great Bank before
Traeger went in to rob it. Better she
does not have immunity, for it might show
she didn’t think criminal activity was
going to take place.
Traeger’s next argument is that he
received ineffective assistance of
counsel at trial because his attorney,
Clarke, was "unreasonably passive,"
failed to advise the court of a chance
encounter between Traeger and a juror,
and failed to move for separate trials
for the two robberies. When considering a
claim of ineffective assistance of
counsel, we review the district court’s
conclusions of law de novo, its factual
findings for clear error, and its denial
of an evidentiary hearing for an abuse of
discretion. See Bruce v. United States,
256 F.3d 592, 597 (7th Cir. 2001).
To establish a claim of ineffective
assistance, the defendant must satisfy a
two-prong test. First, he must show that
counsel’s performance was deficient,
which means that the attorney’s errors
were so serious that the defendant was
deprived of "counsel" within the meaning
of the Sixth Amendment. Second, the
defendant must show that the deficient
performance prejudiced him. See
Strickland v. Washington, 466 U.S. 668,
687 (1984). To establish prejudice, the
defendant must show that there is a
reasonable probability that, but for
counsel’s shortcomings, the result of the
proceeding would have been different. See
id. at 694. This is a difficult test to
satisfy because counsel is strongly
presumed to have rendered adequate
assistance and to have made significant
decisions in the exercise of his or her
reasonable professional judgment. See id.
at 690.
Traeger’s first contention is that
Clarke was cowed by fear of violating a
proffer agreement into "making no effort
whatsoever" to elicit favorable evidence
that was not inconsistent with the
proffer, in which Traeger admitted
torobbing the LaSalle Bank. The agreement
provided that if Traeger testified
contrary to the substance of the proffer
or otherwise presented a position
inconsistent with it, the government
could use the proffer at trial for
impeachment (or in rebuttal). Traeger
claims that he asked Clarke to call
several potential witnesses, whom Clarke
failed to call. These potential witnesses
included two LaSalle Bank security guards
whose descriptions of the robber "varied
slightly from each other and from the
description given by Barajas." Traeger
also wanted Clarke to call a desk clerk
from the YMCA who believed that the man
depicted in the bank’s security photos
was someone named Ralph Freeman. Another
witness Traeger wanted Clarke to call was
Great Bank teller Sun Gang (recall what
we said earlier about her in quoting
teller Lee), who he believed would
testify that there was a large sum of
money sitting on her counter when Traeger
was in the bank and that he did not take
it. This evidence, he says, would show
that he did not intend to rob the bank.
Traeger argues that, under United States
v. Krilich, 159 F.3d 1020 (7th Cir.
1998), the testimony of these witnesses
would not have been inconsistent with the
proffer and therefore would not have
triggered use of the proffer at trial. In
Krilich, we held that evidence is
inconsistent with a proffer statement
only if it implies that the proffer is
false. See id. at 1025-26.
Traeger waived or at least forfeited his
arguments concerning these witnesses. In
his May 1999 pro se motion, he raised an
ineffective assistance of counsel claim
based on Clarke’s failure to call these
potential witnesses. In November 1999
Traeger obtained his second attorney,
Collins, who filed a second motion
asserting ineffective assistance on the
same grounds. Once Traeger was
represented by counsel, he was not
entitled to have the district court
consider his previous pro se motion. See
United States v. Johnson, 223 F.3d 665,
668 (7th Cir. 2000) (holding that
assertion of the right to counsel
constitutes de facto waiver of the right
to proceed pro se). Thus, Collins’ motion
became the only one before the district
court. Before the court could rule on it,
however, Traeger, as we said, fired
Collins and asked the district court to
treat Collins’ motion as "null and void."
The motion that Traeger’s third attorney,
Meczyk, filed did not specifically refer
to the potential witnesses we just
mentioned, but alleged that Clarke
rendered ineffective assistance by, among
other things, "failing to address Mr.
Traeger’s proffer." Meczyk’s motion also
asserted that, in order to render
effective assistance, Clarke would have
"needed to deal with the proffer, either
in a motion in limine or at trial." The
Meczyk motion does not detail how exactly
Clarke should have "addressed" or "dealt
with" the proffer, but it does go on to
note that Traeger had "alibi witnesses."
It’s certainly less than clear to us that
this statement refers to the bank
security guards, teller Sun Gang, or the
YMCA desk clerk. Assuming that it does,
this statement did not sufficiently
notify the district court of the
substance of Traeger’s arguments
concerning these witnesses. Therefore,
Traeger at least forfeited these
arguments. Forfeiture is the failure to
make a timely assertion of a right. See
id. at 415. We review forfeited errors
for plain error that affects substantial
rights. See United States v. Olano, 507
U.S. 725, 732 (1993).
But given Traeger’s subsequent actions
with regard to Meczyk’s motion, it
appears that he waived these arguments
entirely rather than merely forfeiting
them. Waiver is the intentional
relinquishment or abandonment of a known
right. See United States v. Cooper, 243
F.3d 411, 415-16 (7th Cir. 2001). Here,
the district court gave Traeger an
opportunity to amend or supplement
Meczyk’s motion. Traeger chose not to
file anything renewing his arguments
concerning the potential witnesses.
Therefore, he intentionally relinquished
these arguments. Because he waived them,
we may not review them because in such a
situation there is no error to correct.
See Cooper, 243 F.3d at 415.
Assuming that Traeger merely forfeited
these arguments, however, he cannot
establish plain error. The record is
silent as to why Clarke decided against
calling the bank guards as witnesses. We
will not presume deficient performance
based on a silent record because we
presume counsel made reasonable strategic
choices unless the defendant presents
evidence rebutting that presumption. See
Strickland, 466 U.S. at 689-90. Clarke
may have decided not to call the bank
guards because the impeachment value of
their testimony was low. This decision
would have been supported by the fact
that the bank guards’ descriptions of the
robber were generally consistent with
each other and with Barajas’ description-
-each guard described the robber as a
fair-haired white male in his thirties
wearing a baseball cap and a long
ponytail; both described him as 6’3" or
6’4", and both had him in the
neighborhood of 300 pounds. It’s also
possible that Clarke worried that calling
the guards would backfire if they
identified Traeger as the robber when
they saw him in court.
Nor can we say that Clarke’s decision
not to call the YMCA desk clerk was
ineffective assistance, especially given
that testimony from the clerk that
"Freeman" was the robber, implying that
Traeger was not, would have triggered
introduction of the proffer in rebuttal
because that testimony would have been
inconsistent with Traeger’s admission
that he committed the robbery. Likewise,
we cannot say that Clarke’s decision not
to call Sun Gang amounted to ineffective
assistance. Traeger puts forth no
evidence that she would have testified
that Traeger actually saw the alleged
pile of money on her counter. A
defendant’s speculation about what
evidence might have been found is
insufficient to demonstrate prejudice--he
must show what the evidence would have
been and how it would have produced a
different result. See United States v.
Shetterly, 971 F.2d 67, 75 (7th Cir.
1992).
Traeger also claims ineffective
assistance based on Clarke’s failure to
advise the trial judge of a chance
encounter between Traeger and a juror. On
the last day of trial, one of the deputy
marshals escorting Traeger from lockup to
the courtroom walked him past the jury
room, which had its door open. At the
time, the juror was seated in the jury
room and could have seen Traeger, who was
in shackles wearing an orange jail
jumpsuit. Traeger claims that he told
Clarke of this incident, but that Clarke
advised him not to mention it to the
judge because the issue could be a valid
ground for appeal in the event of a
guilty verdict. Traeger complains that
being seen in prison garb and shackles
deprived him of the presumption of
innocence. See Estelle v. Williams, 425
U.S. 501, 504 (1976).
Traeger bears the burden of showing
affirmatively that he was prejudiced by
inadvertent exposure to the juror. See
United States v. Jones, 696 F.2d 479, 492
(7th Cir. 1982). The facts of Jones are
instructive. There, during the second day
of trial, the defendant was being
escorted to the courtroom via elevator
when he allegedly encountered a juror who
was standing outside the elevator. At the
time, the defendant was shackled to a
defendant in an unrelated case who had
received tremendous local publicity. The
encounter lasted about 4 seconds. See id.
at 492. We held that it was not so
prejudicial as to require a mistrial. See
id. at 492-93.
Here, the district court expressed doubt
that the juror even saw Traeger. Even
assuming that the juror saw him, Traeger
put forth no affirmative evidence that
the encounter had an unfairly prejudicial
effect. Two of our sister circuits have
held that the mere fact that a juror had
a brief view of a defendant in custody is
not sufficient to establish prejudice
warranting a new trial. See United States
v. Van Chase, 137 F.3d 579, 583 (8th Cir.
1998); United States v. Halliburton, 870
F.2d 557, 561 (9th Cir. 1989). This is a
sound proposition, given that a
reasonable juror would understand that
not all criminal defendants are able to
post bail, and therefore that their
detention pending verdict does not imply
guilt.
Traeger’s final asserted ground for
ineffective assistance is Clarke’s
failure to move for separate trials on
the two charges. Traeger claims that
there was a potential for unfair
prejudice because his defenses to the two
counts were different. But two or more
charges are properly joined for trial if
they arise from offenses that are the
same or of similar character. See Fed. R.
Crim. P. 8(a). Clearly, robbery and
attempted robbery are similar in
character. Additionally, there would have
been no point in severing the charges
because evidence of the Great Bank
attempted robbery would have been
admissible in a trial on the LaSalle Bank
robbery charge under Federal Rule of
Evidence 404(b) to prove identity.
Likewise, evidence of the LaSalle Bank
robbery would have been admissible under
Rule 404(b) to prove intent in a trial of
the Great Bank charge. See United States
v. Dijan, 37 F.3d 398, 402 (8th Cir.
1994) (holding that joinder of charges
was not prejudicial because evidence for
each set of counts was mutually
admissible to show the defendant’s
motive, intent, and pattern of criminal
behavior).
Traeger also argues that the district
court should have suppressed teller
Barajas’ identification of him as
theperson who robbed the LaSalle Bank. He
claims that the lineup at which she
identified him was unduly suggestive
because Traeger was noticeably "bigger"
and "rounder" than the other men in the
lineup and because Traeger was the only
one wearing an "ankle restraint."
In recent cases we have stated
inconsistently the standard of review of
a district court’s refusal to suppress an
identification, sometimes stating that
our review is de novo, sometimes that it
is for clear error. We first noted this
inconsistency in United States v. Curry,
187 F.3d 762, 768 (7th Cir. 1999) (citing
United States v. Newman, 144 F.3d 531,
535 (7th Cir. 1998) (de novo); United
States v. Funches, 84 F.3d 249, 253 (7th
Cir. 1996) (clear error); United States
v. Moore, 115 F.3d 1348, 1360 (7th Cir.
1997) (clear error)). We declined to
resolve the inconsistency, holding that
the defendant in Curry lost under either
standard of review. See Curry, 187 F.3d
at 768. Since Curry, we have invoked both
the clear error standard and the de novo
standard without mentioning the conflict.
See United States v. Galati, 230 F.3d
254, 259 (7th Cir. 2000) (clear error);
United States v. Downs, 230 F.3d 272, 275
(7th Cir. 2000) (de novo). As in Curry,
we need not resolve the conflict here, as
Traeger’s argument is a loser under
either standard.
The lineup occurred 3 weeks after the
LaSalle Bank robbery. All six
participants wore orange jumpsuits.
Initially, they were seated to minimize
any height differential, but then each
took turns standing up. Barajas
identified Traeger as the robber without
hesitation, later testifying that she
recognized him immediately but that she
looked over the men twice to be sure
before announcing that he was the robber.
Traeger complains that the lineup was
unduly suggestive because he was the
largest participant. We engage in a two-
part inquiry in determining the
admissibility of challenged
identification testimony. First, we ask
whether the defendant established that
the identification procedure was
unnecessarily suggestive. If it was, we
ask whether, under the totality of the
circumstances, the identification was
reliable despite the suggestive
procedures. See Kubat v. Thieret, 867
F.2d 351, 357 (7th Cir. 1989). In
determining the reliability of an
identification, we consider five factors:
(1) the witness’ opportunity to view the
criminal at the time of the crime, (2)
the witness’ degree of attention, (3) the
accuracy of the witness’ prior
description of the criminal, (4) the
level of certainty that the witness
demonstrated at the time of the
confrontation, and (5) the time elapsed
between the crime and the confrontation.
See Cossel v. Miller, 229 F.3d 649, 655
(7th Cir. 2000) (citing Neil v. Biggers,
409 U.S. 188, 199-200 (1972)).
Here, our review of photographs of the
lineup indicates that, although Traeger
was larger than the other participants,
the size differential was not so great as
to make the lineup unduly suggestive.
Additionally, we note that it would have
been difficult to find five other men
approximating Traeger in size and
physical appearance--outside of the NFL,
six and a half footers who tip the scales
at 350 pounds are fairly rare.
Authorities conducting lineups are
required only to make reasonable efforts
under the circumstances to conduct a fair
and balanced presentation. They are not
required to search for identical twins in
age, height, weight, or facial features.
See United States v. Moore, 115 F.3d
1348, 1361 (7th Cir. 1997). A trip to
Hallas Hall to gather a lineup was not
required here. The fact that the other
lineup participants could not pass for
Traeger’s twins did not make the lineup
unduly suggestive.
Even assuming that the lineup was unduly
suggestive, the Cossel/Biggers factors
support the accuracy of Barajas’
identification. Barajas had ample
opportunity to view Traeger at the time
of the crime, even though Traeger argues
that the encounter lasted only 2 or 3
minutes, and that Barajas had to spend at
least some of that time looking away from
the robber to remove money from her
drawer. Barajas spent that time in close
proximity to Traeger, and her attention
was likely sharpened by the fact that she
was being robbed. The description she
gave of the robber on the day of the
robbery accurately describes Traeger. She
stated he was a white male in his early
to midthirties who was 6’3" tall, weighed
300 to 350 pounds, was unshaven, and wore
a blond ponytail. Finally, the lineup
took place only 3 weeks after the
robbery, at a time when the robber’s
appearance was still fresh in Barajas’
memory.
Traeger argues that it was significant
that Barajas did not recall seeing
tattoos on the robber’s hands because
Traeger has tattooed hands. Traeger did
not present this argument to the district
court at the suppression hearing, so he
waived it. Even assuming he properly
presented this argument, in the face of
the other factors indicating that
Barajas’ identification was reliable, her
failure to notice whether the robber had
tattooed hands is insignificant.
Traeger also complains that the lineup
was unduly suggestive because he was
wearing a visible ankle restraint at the
time. The restraint was a plastic tie
wrap that authorities used because
Traeger was too large for leg cuffs. At
the suppression hearing, Barajas was
shown a photograph of the lineup and
directed to describe what she saw on
Traeger’s right ankle. She stated that
the ankle restraint looked like a strap,
that she did not remember seeing it
during the lineup, and that, after
looking at it in the photograph, she did
not know what purpose it served.
Based on our review of photos of the
lineup, we note that the restraint was a
thin plastic tie that someone not
familiar with the inner workings of the
criminal justice system would not
recognize as a restraint. Indeed, it
seems unlikely that Barajas even noticed
the strap, given that her attention was
focused on Traeger’s face, which she
demonstrated by telling the FBI agents
after she identified Traeger that the
robber’s face and eyes were the features
that she remembered most. Thus, the
presence of the ankle strap was not
unduly suggestive as to corrupt the
reliability of Barajas’ identification.
Finally, Traeger argues that he was
deprived of his right to counsel at his
sentencing hearing. Traeger’s brief fails
to point out that the reason that he was
unrepresented at sentencing was that he
fired Meczyk, the last in his long line
of attorneys, a month before sentencing.
He also fails to point out that before
the district court allowed Meczyk to
withdraw, Traeger stated that he wanted
to proceed pro se and acknowledged the
court’s earlier admonition that, if he
fired Meczyk, the court would not appoint
yet another lawyer. Traeger claims that
in doing so, however, he did not waive
the right to counsel.
A defendant can waive his right to
counsel through conduct as well as words.
See United States v. Oreye, 263 F.3d 669,
670 (7th Cir. 2001). Because
representation by counsel and self-
representation are mutually exclusive
entitlements, the assertion of one right
constitutes a de facto waiver of the
other. See Johnson, 223 F.3d at 668.
Here, Traeger acknowledged the district
court’s warning that it would not appoint
another attorney if he fired Meczyk and
still chose to go forward to sentencing
pro se. This choice was a sufficient
waiver of the right to counsel.
Additionally, we held in United States
v. Irorere, 228 F.3d 816, 826 (7th Cir.
2000), that a defendant may waive the
right to counsel through his own
"contumacious conduct." There, we upheld
the district court’s refusal to appoint
counsel for the defendant’s sentencing
hearing because the defendant had already
frustrated four of the court’s attempts
to provide counsel for him. See id. at
827. The facts of Irorere are strikingly
similar to those of Traeger’s case.
Traeger went through three lawyers,
firing them for questionable reasons. In
the process, he managed to delay his
sentencing for almost 2 years. We review
the district court’s refusal to appoint
counsel for abuse of discretion and will
not reverse unless the failure to do so
would result in fundamental unfairness
impinging on due process rights. See id.
Under these circumstances, the district
judge did not even come close to abusing
his discretion in refusing to appoint a
fourth lawyer to represent Traeger.
AFFIRMED.
FOOTNOTES
/1 The Spa Motel is not to be confused with the
Waldorf-Astoria: its rate was only $25 a night.
/2 There was a "Goodman" who testified during the
trial, but her first name was Rochelle.