*fn1,The opinion of the court was delivered by: Rovner, Circuit Judge.,UNITED STATES OF AMERICA, PLAINTIFF‐APPELLEE, v. SIDNEY O. SELLERS, DEFENDANT‐APPELLANT." />

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United States of America v. Sidney O. Sellers

May 19, 2011 *fn1


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.

The opinion of the court was delivered by: Rovner, Circuit Judge.

ARGUED May 18, 2010

Before O'CONNOR*fn2 , Associate Justice, and KANNE and ROVNER, Circuit Judges.

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 possession 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 Amendment right to counsel of his choosing, the judgment of the district court is vacated and the case 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 surrounding 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.

Sellers initially retained attorney David Wiener to represent him against the drug and gun charges. Apparently, shortly after Sellers engaged Wiener, Wiener approached 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,

Oppenheimer filed an appearance, Wiener did not. Thus at his probable cause and detention hearing on February 22, 2008, Sellers appeared with Oppenheimer alone. Oppenheimer 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 continue. 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 indicated, nevertheless, that these dates were contingent upon the district court's grant of a continuance.*fn3 On 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 originally 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 continue, 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 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. Consequently, because Oppenheimer had not intended to act as lead counsel, and had not prepared adequately for trial, and because Wiener was not available, Oppenheimer renewed his motion for a continuance. The court again denied the motion but delayed the trial one week 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 reluctantly 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, Tr. 5/19/08 at 7. The new attorney, Volpe, reported that he would file an appearance in the case 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 canceling 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 repeating, 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 ...

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