United States v. Sidney Seller

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2516
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
S IDNEY O. SELLERS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:08-cr-00023-RL-APR-1—Rudy Lozano, Judge.
A RGUED M AY 18, 2010—D ECIDED M AY 19, 2011 Œ
Before O’C ONNORŒŒ , Associate Justice, and K ANNE and
R OVNER, Circuit Judges.
Œ
This opinion was released initially in typescript form.
ŒŒ
The Honorable Sandra Day O’Connor, Associate Justice of
the United States Supreme Court (Ret.), sitting by designation
pursuant to 28 U.S.C. § 294(a).
2 No. 09-2516
R OVNER, Circuit Judge. As part of a sting operation,
police officers and Drug Enforcement Administration
officers staked out Sidney Sellers’s car. When they pulled
the car over for traffic violations, they found a fully
loaded handgun registered in Illinois. Sellers, however,
was in Indiana. Upon arrest for possession of a handgun
without the requisite license, an inventory search of
Sellers’s car revealed several bags containing crack
cocaine. Sellers was charged with and convicted by a jury
of possession with intent to sell crack cocaine and posses-
sion of a firearm used in drug trafficking, and sentenced
to 180 months’ incarceration. In this court, Sellers
argues that the district court deprived him of his Sixth
Amendment right to choice of counsel by failing to
grant a continuance, that the court erred in denying
his motion to suppress evidence gathered pursuant to
the search of his vehicle, and that the government lacked
sufficient evidence at trial to prove him guilty beyond
a reasonable doubt of the drug offense. Because we
find that Sellers was indeed denied his Sixth Amend-
ment right to counsel of his choosing, the judgment of the
district court is vacated and the case is remanded for
a new trial. We need not address Sellers’s other issues
presented for review.
I.
Our holding obviates the need to detail the facts sur-
rounding Sellers’s criminal activity and arrest. Instead,
we focus on the particulars surrounding Sellers’s choice
and retention of counsel, and the district court’s response.
No. 09-2516 3
Sellers initially retained attorney David Wiener to
represent him against the drug and gun charges. Appar-
ently, shortly after Sellers engaged Wiener, Wiener ap-
proached attorney Michael Oppenheimer and asked him
to appear as secondary counsel. R. 36, Tr. 5/9/08 at 10-11.
Oppenheimer, by all indications, was a stranger to Sellers,
having never been hired by him. Nevertheless, Oppen-
heimer filed an appearance, Wiener did not. Thus at
his probable cause and detention hearing on February 22,
2008, Sellers appeared with Oppenheimer alone. Oppen-
heimer appeared with Sellers again on March 13, 2008,
at his arraignment before Magistrate Judge Rodovich.
At that hearing, the magistrate judge set a deadline
of April 12, 2008, for pre-trial motions, April 25 for the
pre-trial conference, and May 12 for trial. The pre-trial
conference was later re-set to May 2, 2008 due to
Oppenheimer’s automobile trouble on April 25.
At the pre-trial conference on May 2, Oppenheimer
indicated that he would file imminently two motions—a
motion to suppress evidence and a motion to con-
tinue. The magistrate judge set dates requiring pre-trial
motions by May 6 and government responses by May 20.
The latter date fell eight days past the original trial
date, presumably anticipating that the district court
would grant the continuance. The magistrate judge indi-
cated, nevertheless, that these dates were contingent
upon the district court’s grant of a continuance.1 On
1
The parties have informed this court that they are unable to
provide transcripts of the proceedings before Magistrate
(continued...)
4 No. 09-2516
May 5, the district court judge issued an order setting
a status conference for the following day.
Oppenheimer filed his motion to suppress evidence
on May 6. The government immediately objected that
the motion was late, having not been filed within the
thirty days following the March 13 arraignment as origi-
nally ordered. The next day, Sellers filed his motion for
a continuance, which asserted first, that counsel had
filed the motion to suppress on May 6 in reliance on the
magistrate judge’s briefing schedule, and second, that
Sellers required a continuance to allow him to proceed
with his counsel of choice, David Wiener. R. 26 at 2.
That same day, May 7, the district court judge denied
both the motion for a continuance and the motion to
suppress evidence. In dismissing the motion to con-
tinue, the court explained that the case had been set
for trial since March 13, 2008, and that Sellers had filed
the motion for the continuance just three business days
before the scheduled trial date. The district court did
note that the magistrate judge had extended the dates
(...continued)
Judge Rodovich on May 2, 2008, as they were held in chambers
and off the record. R. 36. We therefore have only the parties’
representations of what Magistrate Judge Rodovich said at
that hearing. After conferring with the magistrate judge, at a
later hearing, the district court judge stated on the record,
and Sellers’s counsel confirmed, that the magistrate judge
unequivocally informed the defendant that the dates he was
setting were contingent on the district court’s grant of a con-
tinuance. See R. 36, Tr. 5/9/08 at 5-6, 26-27.
No. 09-2516 5
for filing, but stated that “Magistrate Rodovich gave the
dates for the filing of the motion to suppress and the
response contingent upon this Court granting a motion
to continue.” R. 30 at 2. The district court judge
also claimed to be “baffled” by the information that
David Wiener was lead counsel and counsel of choice
for Sellers. Wiener, the court noted, had yet to file an
appearance in the case, and Oppenheimer’s associate
had failed to mention a proposed change in counsel
when appearing at the status hearing. “Additionally,” the
district court judge wrote, “it is typically this Court’s
rule that new counsel take the case as they find it.” R. 30
at 2. Finally, the district court noted that Sellers’s
attorney had missed several filing deadlines and failed
to show good cause to file a late motion. In short, the
district court denied the motion for a continuance
and confirmed the trial date of May 12, 2008.
Oppenheimer appeared again with Sellers on May 9
and orally renewed his motion for a continuance. Wiener,
Oppenheimer explained, had been retained by Sellers
to act as lead counsel in the case and had informed
Oppenheimer that he would file his appearance shortly.
Wiener, however, was scheduled to begin a murder trial
in state court on May 12, the date Sellers’s trial was set
to start, and then a second murder trial on May 19. Con-
sequently, because Oppenheimer had not intended to act
as lead counsel, and had not prepared adequately for
trial, and because Wiener was not available, Oppen-
heimer renewed his motion for a continuance. The court
again denied the motion but delayed the trial one week
6 No. 09-2516
as a courtesy to counsel, to allow the parties to brief the
motion to suppress. The new trial date of May 19, 2008,
was no better for Wiener, as he was scheduled to begin
his second murder trial in state court that day.
On May 12, at a pre-trial hearing, Oppenheimer again
appeared for Sellers, but informed the court that Wiener
would enter his appearance that day and that Wiener
was hopeful that he would be able to appear for trial on
May 19.
Sellers appeared before the district court judge again
on Friday, May 16, after he informed the court that he
wished to fire Oppenheimer. Sellers addressed the court
and announced first, that he had not chosen Oppenheimer
as his counsel, second, that he had retained Wiener, and
third, that because Wiener had never appeared, he had
been in contact with two additional attorneys, one of
whom he hoped to hire. The district court informed
Sellers that although he was free to fire Oppenheimer,
the court was unlikely to grant a continuance to allow
new counsel additional time to prepare for trial. Sellers
reiterated that he wished to fire Oppenheimer but reluc-
tantly agreed to continue with him until he could be
assured that he had substitute counsel for trial.
On the scheduled date of trial, Monday, May 19, 2008,
Sellers appeared with both Oppenheimer and his newly
retained attorney, Santo Volpe. Each counsel and the
defendant addressed the court announcing his situation:
Sellers told the court, “I don’t want Mr. Oppenheimer
to represent me. We have too many differences on the
case. We don’t see eye to eye. We don’t get along.” R. 74,
No. 09-2516 7
Tr. 5/19/08 at 7. The new attorney, Volpe, reported
that he would file an appearance only if the court
would continue the case to allow him adequate time
to prepare for trial. Finally, Oppenheimer informed the
court that Sellers had fired him on Friday and hired
Volpe in his stead. The district court judge denied the
informal motion to continue, explaining that he had
already attempted to accommodate counsel by hearing
an untimely motion to suppress, by pushing back the
trial date from May 12 to May 19, and by cancelling
his attendance at a Seventh Circuit conference. The
court noted further that Sellers’s repeated promises
that Wiener would file an appearance never came to
fruition. The district court then instructed Sellers that
he was free to fire Oppenheimer (who, it is worth re-
peating, Sellers had never hired in the first place), but
that if another attorney did not enter his appearance
that day, Sellers would have to proceed to trial pro se.
Sellers ultimately agreed “under protest,” as he put it, to
continue with Oppenheimer as his counsel. R. 74, Tr.
5/19/08 at 8, 13. Following a three-day jury trial, Sellers
was convicted on all counts. He was later sentenced to
a term of imprisonment of 180 months. After unsuc-
cessful post-trial motions, Sellers filed this appeal.
In this court, Sellers argues that the district court’s
refusal to grant him a continuance deprived him of his
Sixth Amendment right to choice of counsel. We agree
that Sellers was deprived of his Sixth Amendment right
and that he therefore is entitled to a new trial.
8 No. 09-2516
II.
The Sixth Amendment grants a defendant the right to
assistance of counsel. United States v. Gonzalez-Lopez, 548
U.S. 140, 144 (2006). This includes the right, when the
defendant has the means to retain his own attorney, to
be represented by counsel of choice. Id. Consequently, a
court cannot arbitrarily or unreasonably deny a defendant
the right to retain chosen counsel. Carlson v. Jess, 526
F.3d 1018, 1024 (7th Cir. 2008). The right is separate
from the generalized due process right to a fair trial, and
thus the deprivation of the right is complete when the
defendant is erroneously denied counsel of choice.
Gonzalez-Lopez, 548 U.S. at 148. Such a denial constitutes
structural error and justifies reversal without inquiry
into prejudice. Id. at 150.
The right to counsel and the right to engage counsel
of one’s choosing, however, are not absolute. A court
retains wide latitude to balance the right to choice of
counsel against the needs of fairness to the litigants and
against the demands of its calendar. Gonzalez-Lopez, 548
U.S. at 152; United States v. Smith, 618 F.3d 657, 666 (7th
Cir. 2010); United States v. Carrera, 259 F.3d 818, 824-25
(7th Cir. 2001). This means, of course, that trial courts
have broad discretion to grant or deny a request for a
continuance to substitute new counsel. Carlson, 526 F.3d
at 1025. “Only an unreasoning and arbitrary insistence
upon expeditiousness in the face of a justifiable request
for delay” violates the Sixth Amendment right. Carrera,
259 F.3d at 825. In determining whether the decision
was arbitrary, we consider both the circumstances of
No. 09-2516 9
the ruling and the reasons given by the judge. United
States v. Santos, 201 F.3d 953, 958 (7th Cir. 2000).
In its May 7 order, the district court offered three pri-
mary explanations for its initial denial of a continuance.
First, the motion was filed past the deadline for pre-
trial motions set by the magistrate judge and only days
before trial. R. 30 at 1-2. Second, Sellers’s preferred
counsel had not yet filed an appearance and even if
he had, the court would follow its own rule that if
a defendant wishes to hire a new lawyer, that “new
counsel take the case as they find it.” R. 30 at 2. Third,
Oppenheimer had repeatedly missed other deadlines
in the matter. 2 Id.After the court issued the order, Oppenheimer renewed
his motion orally before the court during pre-trial hear-
ings. In sticking with his original denial, the district court,
from the bench, offered several additional explanations
for denying the continuance. These included the fact
that the court had already accommodated the defendant
by moving the case back one week, the government had
timely turned over discovery, the case was not complex,
the judge had cancelled his attendance at the Seventh
Circuit judicial conference, the delay of the trial would
affect other cases in need of trial dates, and that he was
2
Interestingly, the court denied the motion for a continuance
to substitute new counsel in part because of the failings
of counsel. Under this reasoning, a defendant whose lawyer
fails to comply with the court’s deadlines will be saddled
with his ineffective counsel precisely because the lawyer is
ineffective.
10 No. 09-2516
responding to the propensity of other Illinois counsel to
request last minute continuances.
To determine whether the decision was arbitrary, we
consider the reasons for denial articulated by the district
court judge. See Santos, 201 F.3d at 958. We begin with the
court’s repeated statement—reiterated four times—that
the continuance would be denied, in part, because “it is
typically this Court’s rule that new counsel take the case
as they find it.” R. 30 at 2. See also R. 74, Tr. 5/19/08 at 5;
R. 36, Tr. 5/16/08 at 4, 26. This is not, however, the rule
in this Circuit. Quite the opposite. The Sixth Amend-
ment demands that a district court may not arbitrarily
and unreasonably deny a continuance to provide for
choice of counsel. Carlson, 526 F.3d at 1024. Adhering to
a rigid rule that “a lawyer must take the case as he finds
it” is exactly the type of arbitrary rule that the Sixth
Amendment prohibits. See id. at 1026. Thus a myopic
insistence on proceeding with a scheduled trial date in
the face of a valid request for a continuance is arbitrary
and unreasonable. United States v. Miller, 327 F.3d 598,
601 (7th Cir. 2003).
But what of the district court’s other explanations for
the denial? The district court seemed particularly con-
cerned about the “eleventh-hour” filing for a continuance
and the related fact that Sellers’s attorney had missed
the deadlines for other pre-trial filings. See R. 30 at 1
(criticizing the 11th hour motion); R. 36, Tr. 5/9/08 at 15-16,
20 (same); R. 36, Tr. 5/16/08 at 18 (same); R. 74, Tr. 5/19/08
at 12 (same); R. 30 at 2-3 (criticizing counsel for ignoring
other pretrial filing deadlines); R. 36, Tr. 5/9/08 at 31, 34
No. 09-2516 11
(same); R. 74, Tr. 5/19/08 at 10 (same). A district court,
after all, has a legitimate interest in ensuring that parties
abide by scheduling orders to ensure prompt, orderly, and
fair litigation. Campania Mgmt. Co., Inc. v. Rooks, Pitts &
Poust, 290 F.3d 843, 851 (7th Cir. 2002). Even where
Sixth Amendment rights are at stake, a district court
legitimately can balance the right to counsel of choice
against the demands of its calendar and make scheduling
and other decisions that effectively exclude chosen
counsel. Gonzalez-Lopez, 548 U.S. at 152. The key, how-
ever, is whether the court has indeed balanced those
interests, or instead has acted arbitrarily.
It is through this lens that we view the district court’s
explanation that the defendant’s motion for a continu-
ance came too late. Oppenheimer filed the first motion
for a continuance on May 7, 2008, five days (three
business days) before the originally scheduled May 12
trial date. This fact, the government says, distinguishes
Sellers’s case from one upon which the defendant heavily
relies—Carlson, 526 F.3d at 1018. In Carlson, this Circuit
found that the court had denied a defendant his Sixth
Amendment right to counsel of choice when he
requested new counsel four days prior to trial. “Most
notably, in Carlson,” the government says, “the defendant
filed his motion one week before trial . . . . In contrast,
Sellers failed to file his first written motion for [a] con-
tinuance until three business days before trial was sched-
uled to begin.” (Government brief at 22-23). This juxta-
position is confounding. In fact, both Carlson and Sellers
filed their motions at approximately the same point in
litigation—in Carlson’s case, on August 23, just four
12 No. 09-2516
days (and two business days) before the scheduled
August 27 trial. Carlson, 526 F.3d at 1020. Sellers, on the
other hand, filed his motion five days (three business
days) prior to trial. In reviewing the Carlson case, this
court found that the timing of Carlson’s motion was
understandable as he had filed his motion to substitute
immediately after he retained new counsel, he had
never requested substitute counsel previously, he had
no history of gaming the system, and the time since
arraignment was “relatively short.” Carlson, 526 F.3d
at 1026. The court also noted that the case was relatively
simple and would not require a lengthy trial nor many
witnesses. The same can be said for Sellers on all counts
(in fact, the time from Sellers’s arraignment to the sched-
uled trial date was only sixty days—shorter by more
than a third than Carlson’s ninety-nine days). See also
Santos, 201 F.3d at 958-59 (two-and-a-half months from
indictment to trial was not, among other reasons, a
reason to deny a continuance). Like Sellers, Carlson
informed the court that communication between his
lawyer and himself had completely broken down and
that they could not agree on an approach to the defense.
Carlson, 526 F.3d at 1027. If there is any difference at all,
it is that Carlson remained in custody while his case
was pending whereas Sellers was released on bond.
Although this may have given Sellers incentive to delay
his trial, there is no evidence in the record that his
request to delay the trial in order to accommodate the
appearance of his counsel of choice was filed in an
attempt to postpone incarceration. To the contrary, this
was the first and only motion for a continuance that
No. 09-2516 13
Sellers filed prior to trial, and there was an abundance
of evidence that, from day one, Sellers had been repre-
sented by a lawyer he never chose.
We look, however, not just at how close to trial the
request came, or how long it has been since the arraign-
ment, but rather, as the court did in Carlson, we look at
the whole of the circumstances surrounding the last
minute filing. See also Smith, 618 F.3d at 666 (looking at
the court’s comments, taken as a whole); Santos, 201 F.3d
at 958 (“the appellate court must consider both the cir-
cumstances of the ruling and the reasons given by the
judge for it”). At arraignment, the magistrate judge or-
dered all pretrial motions to be filed within thirty days
of the March 13, 2008 arraignment (i.e., on April 12, 2008),
and set a trial date for May 12, 2008. As of the pre-trial
conference on May 2, 2008, Oppenheimer had not filed
any pre-trial motions on Sellers’s behalf. On that date,
Oppenheimer informed the magistrate judge that he
was not counsel of choice and that he would file a
motion for a continuance to give Sellers’s chosen counsel
the opportunity to file an appearance and prepare for
trial. In light of that information, the magistrate judge
extended the deadlines for filing motions, contingent on
the district court’s grant of the continuance. Oppenheimer,
apparently expecting Wiener to replace him at any mo-
ment, failed to file the pre-trial motion to suppress by
the original April 12 date. He also failed to file his pro-
posed jury instructions, proposed voir dire, and joint
statement of the case as originally required, errantly
relying on the magistrate’s judge’s contingent extension.
14 No. 09-2516
There is no doubt that Oppenheimer was at fault for
missing deadlines while waiting for Wiener to appear,
and for incorrectly relying on the magistrate judge’s
contingent extension. But a court that sacrifices a Sixth
Amendment right without viewing the circumstances of
the case as a whole acts arbitrarily. When viewed
through the lens of the case as a whole, we see that
Oppenheimer assumed from the get-go that Wiener
would be taking the helm. Wiener asked Oppenheimer
only for his assistance as second chair. R. 36, Tr. 5/9/08 at 9-
12. Although this does not justify Oppenheimer’s failure
to meet the court’s deadlines, it does provide some evi-
dence that Oppenheimer did not fail to prepare the case
for trial and seek a continuance as a delay tactic or for
other illegitimate reasons, but rather he delayed prepara-
tion in true anticipation that Wiener would step in as
he apparently had promised. Oppenheimer appeared to
be counting on Wiener’s appearance until the bitter end.
See R. 36, Tr. 5/9/08 at 11 (“It is my understanding, Judge,
that Mr. Wiener’s appearance has not yet been filed,
although he plans on filing his appearance”); R. 36, Tr.
5/12/08 at 3 (“The Court: you were advised that he was
going to enter an appearance today? Mr. Oppenheimer:
That’s correct, your Honor.”); Id. at 8 (“The Court:
Mr. Wiener is still going to enter an appearance you
thought today some time? Mr. Oppenheimer: Yes.”); R. 36,
Tr. 5/16/08 at 22 (“The Court: As late as this week did
Mr. Wiener tell you he was going to appear. Sellers: Yes.”).
Moreover, although it is true that the district court
admonished Oppenheimer to prepare for trial, it issued
that warning on the Friday prior to a Monday trial.
No. 09-2516 15
R. 36, Tr. 5/16/08 at 27. The district court advised,
“Mr. Oppenheimer, I suggest that you get ready for trial on
Monday until such time as you are terminated, if you are
terminated.” Id. (emphasis supplied). In fact, Sellers
contacted Oppenheimer later that very day to fire him.
R. 74, Tr. 5/19/08 at 8-9. In short, it does not appear
that Sellers was attempting to delay his trial or game
the system. See Carlson, 526 F.3d at 1026; Santos, 201 F.3d
at 959.
The district court spoke generically of how con-
tinuances burden other litigants and the court’s calendar.
R. 36, Tr. 5/12/08 at 4; R. 74, Tr. 5/19/08 at 11. But the
fact that the district court failed to inquire of either
Oppenheimer, or later Volpe, how long substitute
counsel would need to prepare adequately for trial evi-
dences a failure to actually balance the right to choice
of counsel against the needs of fairness, and suggests
that the district court unreasonably viewed any delay
as unacceptable. See United States v. Williams, 576 F.3d
385, 390 (7th Cir. 2009) (“The failure to inquire how long
the defense needs to prepare suggests that the district
court unreasonably considered any delay unacceptable:
That sort of rigidity can only be characterized as arbi-
trary.”); see also Carlson, 526 F.3d at 1026. A district court’s
schedule, although a significant consideration, does not
automatically trump all other interests. Smith, 618 F.3d
at 666. As this court has noted, trial dates frequently
open when cases settle and defendants plead. Carlson,
526 F.3d at 1026. Although the district court had a two-to-
three week political corruption trial set to begin May 26
(i.e., a week after Sellers’s trial began) (R. 36, Tr. 5/9/08 at
22-23), even the inconvenience of pushing a trial back a
16 No. 09-2516
month or so can easily be outweighed by a defendant’s
interest in having counsel of choice. See Carlson, 526 F.3d
at 1026.
The record provides no evidence that the court balanced
any of these circumstances against the needs of fairness
and the demands of its calendar. See Gonzalez-Lopez, 548
U.S. at 152. It seems instead that the court stood on un-
yielding principle—the principle that new counsel must
“take the case as he finds it”; the principle that continu-
ances will not be granted for those who request them at
the eleventh-hour and miss other deadlines; and the
principle that delay of one case will unfairly backlog
other cases.
In addition to the more compelling “eleventh-hour” and
court scheduling rationales articulated by the district
court, its opinion and oral rulings are riddled with in-
dications of generalized annoyance with defendant’s
counsel that smack of an arbitrary application of the rule
as retribution for both counsel’s own errors, and the
errors of others. Most strikingly, the district court con-
fessed:
I also ran into the problem where there were other
cases with Illinois counsel, who just happened some
were Illinois counsel, and they were counsel that
were appearing at the 11th hour and asking for con-
tinuances because of new counsel. So if I got excited
with you, that was one of the reasons you caught
my wrath because of the dilemma that was being
caused by that.
No. 09-2516 17
R. 36, Tr. 5/12/08 at 5. There can be no more arbitrary
and unreasonable application of a rule than as punish-
ment for the missteps of another lawyer in an unrelated
case. There were plenty of other indications that the
court was simply annoyed with Oppenheimer. The court
appeared to disbelieve everything from Oppenheimer’s
claim of car trouble at one status hearing to his scheduled
appearance on another out-of-state matter. See, e.g., R. 30
at 2 (“Oppenheimer failed to appear at the first pretrial
conference in front of Magistrate Rodovich, claiming car
trouble”); R. 30 at 3, (“Oppenheimer now claims to be
in New Mexico on a matter, but does not explain why
this takes precedence to a trial, or why he was not pre-
pared.”) 3 The district court judge even complained that
he “canceled in part for this case my attendance at the
Seventh Circuit Judicial Conference, which is being held
in Chicago today,” R. 74, Tr. 5/19/08 at 7, and finally,
that he had already “spent a substantial amount of time
getting ready for this case over the weekend and in the
last few weeks.” Id. at 12; R. 36, Tr. 5/9/08 at 20.
We reiterate that a court certainly may consider how
last minute continuances and missed deadlines tread
upon the rights of parties and the demands of a court’s
calendar. The key, however, is that these legitimate con-
siderations must be balanced against the reasons in
support of the motion for a continuance to accommodate
3
The district court judge later conceded that Oppenheimer had
a “well founded” excuse for missing the status conference
to attend a previously scheduled hearing in New Mexico.
R. 36, Tr. 5/9/08 at 13.
18 No. 09-2516
new counsel. Carlson, 526 F.3d at 1026-27. Here, the court
failed in its duty to look also at the other side of the
scale and to weigh Sellers’s rationale for terminating
Oppenheimer. The court ought to have considered the
fact that Oppenheimer had never been Sellers’s counsel
of choice (R. 36, Tr. 5/16/09 at 23). This was not a case
where a defendant hired one counsel and then later
changed his mind. More importantly, communication
between Sellers and Oppenheimer had completely de-
teriorated. R. 74, Tr. 5/19/08 at 7 (“I don’t want
Mr. Oppenheimer to represent me. We have too many
differences on the case. We don’t see eye to eye. We don’t
get along.”). Furthermore, the court must have known
that Oppenheimer was unprepared for trial. The court
had informed Oppenheimer that he should prepare for
trial until such time as he was terminated. R. 36, Tr. 5/16/08
at 27. But Oppenheimer made clear to the court that he
was informed on the Friday before the Monday trial that
he had been fired. R. 74, Tr. 5/19/08 at 8-9. In fact
Oppenheimer was apparently so certain that he was
terminated that he had made arrangements to appear in
another courthouse in another matter on the date set for
Sellers’s trial, and had to call his office from Judge
Lozano’s courtroom to arrange for another lawyer to
appear. R. 74, Tr. 5/19/08 at 17.4
The district court also had the duty to consider that
Sellers’s new counsel and counsel of choice, Volpe, in-
4
It was clear that he was not prepared to give an opening
statement that day, as it was less than one page of transcript
(250 words) and failed to present any coherent theory of the
case. R. 74, Tr. 5/19/08 at 177-78.
No. 09-2516 19
formed the court that “I would be doing a great, great
disservice to Mr. Sellers if I attempted to try this case
this week.” R. 74, Tr. 5/19/08 at 12. Furthermore, Sellers
made it clear that he was not prepared to proceed pro se.
“Well, Your Honor, I can’t represent myself.” Id. at 7.
Thus the court knew that Sellers was left with
three choices: First, he could opt for a lawyer, not of his
choosing, who, although somewhat familiar with the
case, was unprepared for trial, and with whom he
could not get along or agree. Second, he could pick a
lawyer of his choice who was completely unfamiliar
with his case and wholly unprepared for trial; or third,
he could represent himself, again without any time to
prepare for trial or study the law. Sellers’s reasons for
needing a continuance were facially valid, yet the
district court failed to explore them or balance them
against the legitimate reasons for denying the motion
for a continuance. See Carlson, 526 F.3d at 1026-27.
The government argues that Sellers’s case is similar to
United States v. Carrera, where this court upheld the
trial court’s denial of a continuance for substitution of
counsel made in the days just prior to trial. Id. 259 F.3d
818 (7th Cir. 2001). The government ignores the fact that,
because Carrera’s proposed new attorney never actually
appeared to move for a continuance, the district court
could not engage in the exact type of balancing that is
essential before deciding whether a continuance is war-
ranted. Id. at 825 For this reason, Carrera’s lawyer’s
20 No. 09-2516
motion to withdraw as counsel was denied.5 Carrera, 259
F.3d at 825 (“[B]ecause his attorney never moved for a
continuance, we do not know if the government would
have opposed the motion, if the judge had a scheduling
conflict, or if a continuance would have caused hardship
to any of the parties.”).
Under Gonzalez-Lopez, this constitutional violation
constitutes a structural error not subject to review for
harmlessness. Id., 548 U.S. at 148-49, 152. It is impossible
to know what different choices, if any, Wiener or Volpe
would have made in how they approached the pre-trial
motions, how they defended Sellers at trial, and what
impact those differences might have had on the outcome
of the proceedings. Id. at 150. The error affected the
framework of the trial and pre-trial proceedings and
denied Sellers his Sixth Amendment right to choice
of counsel.
As a final matter, on May 9, 2011, Sellers moved this
court for a temporary release on bond pending appeal.
That motion to this court is now moot, but in light of the
exigent situation regarding Sellers’s mother and her
declining health, the district court shall construe that
motion as one made to it and shall decide the motion
with all due haste.
5
Carrera’s attorneys filed an emergency motion to withdraw
noting that Carrera had terminated their representation.
Carrera’s new counsel, however, did not appear and never
filed a motion to continue or for substitution of counsel.
Carrera, 259 F.3d at 822-23.
No. 09-2516 21
The judgment and sentence below are V ACATED, and
this case is R EMANDED for a new trial, including all pre-
trial proceedings. The mandate shall issue immediately.
6-2-11