The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
On July 29, 2005, a jury found Defendant Aaron Patterson guilty on all counts of a thirteen-count indictment in which he and co-Defendant Mark Mannie were charged with conspiracy to distribute heroin and marijuana, possession with intent to distribute heroin and marijuana, and illegal possession of a firearm. Defendant timely filed a pro se motion for judgment of acquittal and for a new trial; his attorneys subsequently filed on his behalf a second timely motion for a new trial. On March 27, 2006, the court denied both motions. Nearly a year later, on February 26, 2007, Defendant's new attorney filed a "Motion to Reconsider Denial of Motion for New Trial" (the "February 26 motion" or "Mot."), arguing that Defendant's rights to counsel and to due process were violated because he was denied his choice of trial counsel and, separately, his right of self-representation; and because trial counsel was unprepared and had a conflict of interest. The motion further contends that his trial was tainted by juror bias and prejudice. For the reasons explained below, the court concludes that Defendant's arguments are untimely and/or without merit. The motion is denied.
A. Defendant's Representation
Beginning with his initial court appearance shortly after his arrest on August 5, 2004, Defendant was represented by attorney Demitrus Evans. Attorney Tommy Brewer also appeared on Defendant's behalf at all preliminary proceedings, but did not file an appearance (42) until December 30, 2004. Mr. Brewer orally moved to withdraw as Defendant's attorney on January 18, 2005, see Order of 1/18/05; his subsequent written motion (53) cited "a serious and substantial breakdown in communications" with Defendant. According to Mr. Brewer, it was "apparent" that Defendant "had lost all confidence" in Mr. Brewer's representation, "as exhibited by" Defendant's refusal to meet with Mr. Brewer at the Metropolitan Correctional Center ("MCC"). The court granted Mr. Brewer's motion on January 27, 2005.*fn2 Order of 1/27/05.
Beginning on February 11, 2005, the court granted the first of numerous motions for continuance of the trial date, which the court had initially set for February 22, 2005. See Order of 2/11/05; Order of 10/19/04. On April 12, 2005, Ms. Evans, citing "case complexity," requested appointment of additional counsel (98), which request the court granted on April 25. Order of 4/25/05. The court appointed attorney Paul Camarena on May 11. Order of 5/11/05. On May 18, 2005, Ms. Evans, claiming that she was not prepared to try the case, again moved to continue (120) the new trial date of May 31, 2005, and reiterated this request in a motion (135) filed on May 26, 2005, along with an alternative motion for leave to withdraw. On May 27, the court reluctantly granted the new requests for continuance and reset the trial date to June 30, 2005. Order of 5/27/2005. The day before trial, Defendant filed a motion for leave to act as "co-counsel" (184); the court denied the motion the same day. Order of 6/29/05.
On the day trial was set to begin, June 30, 2005, Ms. Evans filed yet another motion for continuance (186), again citing inadequate trial preparation. Defendant also moved on that day to proceed pro se, and upon being informed that the court would accept filings only through counsel, demanded that both attorneys withdraw. See Memorandum Opinion and Order of July 22, 2005 (the "July 22 Order"), at 1-2. During an angry outburst, Defendant loudly announced the home address of each attorney, and urged his supporters in the crowded courtroom to engage in protests outside his attorneys' homes. Id. at 2. Counsel subsequently renewed their request for leave to withdraw. Id.
On July 1, 2005, the court denied counsel's motion to withdraw, Defendant's motions to proceed pro se or as "co-counsel," and the June 30 motion for a continuance. See Memorandum Opinion and Order of 7/1/05 (the "July 1 Order"), at 10. With respect to Defendant's request to represent himself, the court explained that he had forfeited his right to self-representation due to his "persistent refusal to obey even the most basic standards of courtroom decency." Id. at 8. The court also cited the need to protect jurors from the kind of threats Defendant had already made against his attorneys, and the danger of prejudice to co-defendant Mannie. In addition, the court noted that it had already granted two requests for continuance, pushing back the trial date from February to the end of May and then from May to the end of June. Id. at 9. The court further noted that Defendant appeared "determined to do everything within his power to delay his trial." Id. at 4.
On the morning of July 1, as described in greater detail in the July 22 Order, Defendant engaged in a violent outburst and was removed from the courtroom. During the fracas, Ms. Evans became distraught and left the courtroom for several hours, prompting the court to issue a bench warrant for her arrest. July 22 Order, at 3. She returned to court that afternoon, accompanied by counsel who apologized on her behalf to the court and represented that Ms. Evans would meet her obligations to the court and to her client when trial resumed the following week. Id. at 3-4.
On July 8, after three days of jury selection,*fn3 Ms. Evans lost her temper following an adverse evidentiary ruling by the court and again stormed out of the courtroom. Id. at 4. The court then met in chambers with Mr. Camarena, the attorneys for the government and for co-defendant Mannie, and with Tommy Brewer.*fn4 Mr. Brewer advised the court that with three or four days preparation, he would be willing to step back into the case and accept appointment as Defendant's lead counsel. Tr. at 867-69. Although Mr. Camarena objected, voicing concerns that he himself might be ineffective as lead counsel, the court stated that it would likely overrule the objection if Mr. Brewer would indeed serve as lead counsel. Tr. at 873-74. The court directed Mr. Brewer and Mr. Camarena to attempt to meet with Defendant, Tr. at 874; ultimately, the court appointed Mr. Brewer as lead counsel, and scheduled opening arguments for July 12. See Order of 7/11/05.
On Monday, July 11, 2005, Mr. Brewer asked the court to delay the trial until Thursday, July 14, to give him additional time to familiarize himself with the evidence and with the court's prior rulings. Tr. at 908-11. Neither Mr. Brewer nor Mr. Camarena specifically moved for a continuance, however, nor was any such motion filed. The court, citing the potential impact of further delay on the continuing availability of the jurors, declined Mr. Brewer's request and maintained July 12 as the date for opening arguments, Tr. at 910-11; the court did, however, delay presentation of evidence until July 13, "in deference to Mr. Brewer and his very recent . . . reinvolvement in the case." Tr. at 928. On July 13, the court granted Ms. Evans' oral motion to withdraw, Order of 7/13/05, and on July 28, acting on concerns that she was interfering with trial counsel's representation of Defendant, barred Ms. Evans from visiting or communicating with Defendant. Order of 7/28/05; see Memorandum Opinion and Order of August 5, 2005, at 6-7.
On July 15, Defendant filed a "Notice of Appeal" (250) from the court's decision to appoint Mr. Brewer. The court construed this as an objection to Mr. Brewer's appointment, which the court overruled.*fn5 July 22 Order, at 1. The court noted that Mr. Brewer had represented Defendant for several months following his indictment, that he had early access to discovery materials, and had, even after withdrawing in January 2005, continued to attend many of the pre-trial proceedings in the case. Id. at 2. The court further observed that Mr. Brewer had substantial criminal law experience as a former prosecutor, a federal agent, and as a criminal defense attorney who had tried more than 50 murder cases to verdict. Id. The court also noted Mr. Brewer's long relationship with Mr. Patterson that had continued even after his withdrawal, and remarked on the fact that Mr. Brewer had been prepared to proceed with the trial after only a brief continuance. Id. Finally, the court observed that Mr. Brewer appeared well-prepared, capable, and effective at trial, and was capably assisted by Mr. Camarena, who had been on the case for over two months. Id. at 7.
B. Defendant's Alleged Attempt to Hire Private Counsel
In the February 26 motion, Defendant asserts that at some (unidentified) point between July 1 and Ms. Evans' second unwise departure from the courtroom on July 8, Defendant "hired private counsel" Scott Kamin. (Mot., at 9.) The record contains no competent evidence to support the assertion that Defendant actually hired Mr. Kamin, however. Mr. Kamin did file an appearance (230) on July 7, 2005, as well as a motion for leave to substitute as counsel (231) that also requested a 60-day continuance. The court denied the motion as untimely. Order of 7/8/05. In his motion, Mr. Kamin represented that Defendant had, on four occasions between December 20, 2004 and January 13, 2005, "either directly or indirectly, expressed interest in retaining Mr. Kamin and his associate, and then met with them." (Motion for Leave to Substitute as Counsel (231) ¶ 3.) Mr. Kamin further stated that at some point after July 5, 2005, Defendant had, "through a third party, . . . indicated his interest in retaining Mr. Kamin and his associates." (Id. ¶¶ 5-6.) Presenting the motion in court on July 7, Mr. Kamin confirmed that Defendant had "indicated his interest through a third party," but identified that party only as "someone at the MCC."*fn6 Tr. at 773.
The February 26 motion now contends, however, that Defendant had in fact "hired" Mr. Kamin in July 2005. (Mot., at 9.) Defendant attaches Mr. Kamin's affidavit, which states that before he moved to substitute as counsel, he and Defendant "signed a contract according to which [Kamin] agreed to represent [Defendant] if the Court allowed [Kamin] to file an appearance in the case." (Kamin Aff. ¶¶ 3-4, Ex. 5 to Reply.) Attached to this affidavit is the first page of a "Contract for Legal Services and Fee Agreement" that purports to reflect that Aaron Patterson had retained Mr. Kamin and attorney Jason Epstein. The document is neither signed nor dated, nor has Defendant provided any remaining pages. Such an incomplete and unauthenticated document does not even minimally serve as competent evidence to support Mr. Kamin's statement in the affidavit; moreover, that statement itself is inconsistent with Mr. Kamin's representations to this court both in his motion for leave to substitute as counsel and in open court.*fn7
On July 18, 2005, Assistant United States Attorney Hamilton advised the court that based on "fifth-hand" information, there had been "some communication" from one juror to a court security officer ("CSO") to the effect that the juror had "noticed the unsavory people in the gallery or words to that effect." Tr. at 1656. A CSO identified that juror as Juror 119. Tr. at 1661. The court and defense counsel then questioned Juror 119, who reported that "some of the people" observing the trial had been "kind of staring us down, and it was kind of intimidating." Id. The court asked the juror whether this affected his ability to be fair, and to listen to testimony and make a decision based on the evidence; Juror 119 replied, "Absolutely not." Tr. at 1661-62. When asked if other jurors shared these concerns, Juror 119 responded that he "[did not] think there [was] a problem." Tr. 1662-63. Both Mr. Brewer and Mr. Camarena questioned Juror 119 briefly as well; neither voiced an objection, and both indicated that they were "satisfied." Tr. at 1664.
On July 21, Juror 85 advised the court in chambers of her concerns over "people who come in and out" of the gallery. Tr. at 2042. She specifically mentioned "people who come in who are black and who are male and who are young and who are dressed in a manner that I would consider as someone that could possibly belong to a gang." Tr. at 2043. Juror 85 also reported that she had observed Defendant exchanging what she took to be gang signals with "these young men" in the gallery, and told the court: "I don't want to be on this jury. I don't want people coming to my home in the middle of the night to kill me." Id. She explained "this is the way I feel," but that other jurors had also expressed concerns about spectators starting at them. Tr. at 2043-44. When asked by Mr. Brewer if she sensed that other jurors "feel the same way you do," Juror 85 responded, "I do, yes," but that the jurors "tri[ed] not to say that much about it." Tr. at 2044.
In response to Juror 85's comments, the court, along with the attorneys for the defendants and the government, questioned each juror individually in chambers. Most (ten) reported that they had not noticed the people coming and going in the courtroom, and/or that the spectators had not bothered or distracted them. Tr. at 2078, 2080, 2082, 2084, 2085, 2087, 2090, 2094, 2104, 2110. One juror reported that members of the jury had expressed concerns over spectators "making signs . . . back and forth to the defendant," Tr. at 2067-68; another mentioned "weird looks" from spectators, Tr. at 2072; a third remarked that two men in sunglasses had "kind of like freaked me out a little bit," Tr. at 2088; and a fourth reported "discomforting . . . facial reactions" and possible gang signs from spectators, Tr. at 2096-98. All advised the court that this would not affect their ability to be fair to the defendants, or to fairly consider the evidence. Tr. at 2068, 2075, 2089, 2098-99. Juror 120 reported that a "bald, black" man in the galley had made her "a little bit nervous," Tr. at 2106, and that another man who had "made some signs" had made her "a little uneasy," Tr. at 2107, but that none of this had caused any distraction, Tr. at 2108. Other than Juror 120's passing reference, none of the questioned jurors mentioned the spectators' race.
Upon Defendants' motion and without objection from the government, the court excused Juror 85. Tr. at 2093, 2111. The parties made no motion with respect to any other juror.*fn8
On July 29, 2005, the jury found Defendant guilty on all thirteen counts charged in the indictment. On that date, the court directed that any post-trial motions be filed by August 29, 2005. Three motions for post-conviction relief were filed prior to the instant motion: first, Defendant on August 5 filed a pro se motion (the "August 5 motion") for judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure, and for a new trial pursuant to Rule 33; second, on August 29, Mr. Camarena on Defendant's behalf moved for reconsideration of the court's finding of competency and for a new trial (the "August 29 motion"); and third, on December 5, 2005, Mr. Kamin and Mr. Epstein, for whom the court had in October 2005 granted leave to file an appearance, filed an "amended" motion for judgment of acquittal and for a new trial (the "December 5 motion"). Because the February 26 motion contends that the arguments raised therein were included in these prior motions, in particular in the August 5 motion, the court here presents the arguments contained in each, to the extent they are relevant to disposition of the pending motion.
Defendant's pro se motion raised the following eight arguments: (1) Defendant should have been allowed to represent himself; (2) the court "forced [Ms. Evans] to be ineffective" by "requiring her alone to follow the rules," while not asking the same of the government's attorneys; (3) the court erred in reappointing Mr. Brewer because, according to Defendant, Mr. Brewer had "attempted to extort money from [him]"; (4) the court erred in appointing Mr. Camarena because he had allegedly conspired with the government's attorneys to obtain Defendant's conviction; (5) Mr. Brewer was unprepared for trial and thus ineffective; (6) the court should have granted a mistrial over Juror 119's reference to "unsavory" persons in the galley, or at least should have removed Juror 119; (7) the court "attempt[ed] to stymie the defense" when on July 25, 2005, the court ordered that Defendant's visitation and communication privileges at the MCC be limited to contacts with Mr. Brewer and Mr. Camarena; and (8) the court erred by allegedly allowing the government to redact and alter audiotape evidence.
On August 8, 2005, Defendant filed a pro se motion (318) for an extension of time to file an amended Rule 29 and Rule 33 motion. Having already extended that time period on the day the verdict was rendered, the court denied the motion. Order of 8/22/05; see United States v. Hocking, 841 F.2d 735, 737 (7th Cir. 1988) (citing FED R. CRIM P. 29, 33, & 45) (district court, having initially granted extension of time for filing motions for acquittal or for new trial beyond the seven-day limit proscribed by the Rules, lacked authority to grant, outside the seven-day period, a successive request for an extension). The court also explained: "In any event, Mr. Patterson is represented by counsel who intend to file post-trial motions on his behalf. The court declines to entertain his pro se motions." Order of 8/22/05.
Shortly before his trial, the court had found Defendant competent to stand trial. See Order of 6/29/05. The August 29 motion, filed by Mr. Camarena, contended that Defendant's distrust of and refusal to cooperate with his attorneys at trial called that conclusion into question, requiring a new trial. (August 29 motion, at 4-5.)
The December 5 motion, filed by Mr. Kamin, purported to be an "amended" motion for a new trial and for judgment of acquittal. The motion contained the following eight arguments: (1) the court erred by reappointing Mr. Brewer because he had previously withdrawn due to a breakdown in communications, and because the court did not give him enough time to prepare for trial; (2) the court erred by barring Defendant's "public authority" defense; (3) the court should have allowed Defendant's attorney to accompany him to an interview with a government psychologist; (4) the court should not have excluded certain evidence proffered by Defendant regarding his mental health; (5) the court erred in denying Defendant's motion to bar audiotape evidence; (6) the court should have allowed Defendant to represent himself; (7) the court erred by not allowing Mr. Kamin to represent Defendant at trial; and (8) the court "erred in denying the [unspecified] evidentiary objections made by Defendant and in granting the [unspecified] evidentiary objections made by the Government." (December 5 motion ¶¶ 1-8.)
4. The Court's Denial of the Motions
On December 22, the court directed the government to respond only to arguments (1), (5), and (6) in the December 5 motion; the remaining five arguments, not having been raised to any extent in the timely August 5 and August 22 motions, were time-barred. See Order of 12/22/05. On March 27, 2006, the court denied the August 5 and the August 29 motions.*fn9 The court explained that Defendant had failed to show any "structural error" arising either from Mr. Brewer's preparation for trial, or from Mr. Camarena's lack of trial experience. Order of 3/27/2006. Rather, Defendant was required to make a showing of prejudice, which Mr. Kamin conceded in oral argument had not been made. The court explained, in its Order and in court at a March 27 hearing, that to demonstrate prejudice due to ineffectiveness of counsel, Defendant was required, at a minimum, to point to ...