Appeal from the United States District Court for the Northern District of Indiana, Hammond Division.
Before BAUER, FLAUM and DIANE P. WOOD, Circuit Judges.
ARGUED SEPTEMBER 27, 1996
DECIDED DECEMBER 18, 1996
A jury convicted Stephen Golden on December 8, 1994 on nine drug-related counts, including conspiracy to possess with intent to distribute cocaine base ("crack") in violation of 21 U.S.C. sec. 846, distribution of crack in violation of 21 U.S.C. sec. 841(a)(1), use of a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. sec. 924(c), and employment of juveniles for drug distribution in violation of 21 U.S.C. sec. 861(a)(1). On appeal, Golden argues that the district court should have granted his mid-trial request for new counsel, that there was insufficient evidence for the district court to determine that the conspiracy distributed 2.5 kilograms of crack, and that he was not "properly charged" with using a firearm in relation to a drug trafficking crime. We find that in light of Bailey v. United States, 116 S.Ct. 501 (1995), we must reverse the sec. 924(c) firearm conviction. We affirm Golden's convictions and sentences on all other counts.
From approximately November 1993 until August 3, 1994, Golden was the head of an operation which distributed crack in Hammond, Indiana and Calumet City, Illinois. Initially, Golden himself distributed the crack from his apartment at 5495 Hyslop Street in Hammond, where he lived with his wife, Seniqueca, in October and November 1993. He then employed other tenants, twenty-four-year-old Joseph Rodriguez ("Rodriguez") and Rodriguez's girlfriend, seventeen-year-old Reva Nieto ("Reva"), to assist in distribution at the Hyslop Street building. In November 1993, Golden and Seniqueca moved to a house at 6039 Jackson Street in Hammond. Some distribution occurred at the Jackson Street house, but it mainly continued at the Hyslop Street building. Golden expanded the business. Among his new employees were Reva's sixteen-year-old brother, Walter Nieto ("Nieto"), sixteen-year-old Jimmy Flynn ("Flynn"), and fifteen-year-old Carlos Alfaro ("Alfaro").
Golden travelled to Chicago, Illinois, where he bought crack in golf-ball-sized chunks. He brought the chunks back to Hammond, broke them into small pieces of approximately 0.1 gram or more each, and packaged the pieces in plastic bags which he or his workers sold for $10 apiece ("dime bags"). His workers received large packages containing many dime bags and, in return, delivered money to Golden either at the Hyslop Street building or at the Jackson Street house. Evidence adduced at trial showed that during its existence, the conspiracy distributed between 10 and 30 grams of crack daily.
In December 1993, Rodriguez bought two Lorcin .380 semi-automatic pistols from East Chicago, Indiana for Golden. Rodriguez, Seniqueca and Nieto picked up the guns while Golden waited in a second car. On January 20, 1994, an informant and an undercover Hammond police officer bought a total of three bags of crack from Flynn at the Hyslop Street building. In early February 1994, Golden moved the crack operation from the Hyslop Street building to the Jackson Street house, where police and agents from the Bureau of Alcohol, Tobacco and Firearms ("ATF") conducted surveillance. On February 1, 1994, Hammond police officers picked up the trash behind the Jackson Street house. The police found a record Seniqueca kept for Golden which tracked an average day's drug sales by the various workers. The record indicated who had purchased drugs, how much they had paid, and the time of day of the purchases. The police also recovered an empty box for a Lorcin .380, an empty box for .380 ammunition, and two letters from Seniqueca to Golden which referred to the crack operation.
On February 5, 1994, Rodriguez gave the Hammond police a statement about Golden's crack business. The police subsequently obtained a warrant to search the Jackson Street house. Hammond police officers and ATF Special Agents executed the warrant on the evening of February 11, 1994. The officers arrested Alfaro, who was carrying two dime bags, $1,310, and a Lorcin .380 (with serial numbers matching the box found in the trash on February 1). In the house, the officers found boxes of .380 ammunition, a box for a Lorcin .380 (with different serial numbers than the gun Alfaro was carrying), a package with 31 dime bags containing 4.32 grams of crack, pagers, and plastic baggies.
Following the February 11 raid, Golden moved the operation to Calumet City, Illinois for several weeks, but eventually moved it back to the Jackson Street house in March or April of 1994. On July 29, 1994, one of Golden's regular customers, Debra Darge, was arrested after buying crack at the Jackson Street house. Darge agreed to cooperate with the police. On August 1, 1994, Darge made a controlled purchase of four dime bags from Golden. After that purchase and after further surveillance of the Jackson Street house, a second search warrant was executed on August 3, 1994. The police recovered $900 and one dime bag, and Golden and Seniqueca were both arrested.
Robert Lewis was appointed to represent Golden. On August 18, 1994, a federal grand jury returned a twelvecount indictment against Golden and Seniqueca charging them with participating in a conspiracy to distribute cocaine base and with committing various other drug-related offenses. *fn1 On September 14, 1994, Lewis was allowed to withdraw because he represented a potential government witness. R. Cordell Funk was appointed to replace Lewis. Golden's trial began on December 5, 1994. On the second day of trial, Golden complained to the district court about Funk and requested new counsel or, alternatively, asked for a thirty-day continuance in order to obtain new or "better" counsel. The district court denied this motion. On December 8, 1994, Golden was found guilty of Counts 1 and 4-11 in separate verdicts. *fn2 Twenty days after Golden was found guilty, he filed a pro se motion for a new trial, alleging ineffective assistance of counsel by Funk. Funk filed a motion to withdraw on January 6, 1995, and the court granted the motion on January 31, 1995. For the third time, the district court appointed new counsel, Jerry L. Peteet. On April 19, 1995, Peteet filed a second motion for a new trial on Golden's behalf, reiterating Golden's claims of ineffective assistance by Funk and alleging unspecified newly-discovered evidence. On May 1, 1995, the district court denied the motion. On February 5, 1996, Golden, represented by Peteet, was sentenced to life imprisonment and a ten-year term of supervised release. The court also imposed a sixty-month consecutive term on the firearm charge.
Golden has had various conflicts with Peteet. Peteet filed a motion to withdraw as appellate counsel and we denied that motion. Peteet, therefore, represents Golden on appeal, where Golden asks us to vacate the verdicts and to remand for a new trial.
A. Ineffective Assistance of Trial Counsel
In several muddled and sparsely-supported arguments, Golden contends that he received ineffective assistance by Funk at trial. In his brief, Golden states that the "most important" argument he makes concerning his trial counsel is that he should have been afforded a mid-trial substitution of counsel because of the "irreconcilable differences" between him and Funk.
If the defendant has been given an opportunity to explain to the court the reasons behind a request for new counsel, we will review the denial of that request only for abuse of discretion. United States v. Goad, 44 F.3d 580, 589 (7th Cir.), cert. denied, 116 S.Ct. 93 (1995) (citations omitted). Here, the district court properly cleared the courtroom immediately after learning of Golden's concerns about Funk and held an in camera hearing to identify the source of Golden's problems. The record indicates, and we are convinced, that the district court gave Golden more than an adequate opportunity to explain the reasons behind his request for new counsel, so we review the district court's denial of Golden's request for substitute counsel for abuse of discretion.
In determining whether the district court abused its discretion in denying a motion for substitute counsel, we consider several factors including: (1) the timeliness of the motion; (2) the adequacy of the court's inquiry into the defendant's motion; and (3) whether the conflict was so great that it resulted in a total lack of communication preventing an adequate defense. United States v. Zillges, 978 F.2d 369, 372 (7th Cir. 1992) (citations omitted). Although the Zillges factors are not exhaustive (United States v. Brown, 79 F.3d 1499, 1506 (7th Cir.), cert. denied, 117 S.Ct. 196 (1996)), we consider them first.
We find that Golden's request for new counsel on the second day of trial was untimely. Golden argues that he informed the court before trial, during trial, and during the plea negotiations that he had a conflict with Funk. However, the record indicates that the first time Golden informed the district court that he was dissatisfied with Funk was the second day of trial. *fn3 We have previously found that motions for new counsel made prior to trial were timely. See, e.g., Brown, 79 F.3d at 1506 (finding motion made two months prior to trial timely); Zillges, 978 F.2d at 372 (finding motion made approximately one month prior to trial timely). However, we have rarely found that a request for new counsel made during trial was timely. See United States v. Wilks, 46 F.3d 640, 643 (7th Cir. 1995) (finding timing of request for new counsel made during opening statement "questionable to say the least"); United States v. Hall, 35 F.3d 310, 313-14 (7th Cir. 1994) (finding request made after plea and ten days prior to sentencing untimely); c.f. United States v. Tolliver, 937 F.2d 1183, 1187-88 (7th Cir.), cert. ...