Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 06 CR 896, 896-2-Wayne R. Andersen, Judge.
Before EASTERBROOK, Chief Judge, and CUDAHY and POSNER, Circuit Judges. POSNER, Circuit Judge.
The defendants were tried together by a jury, and convicted, of a number of cocaine offenses. Gaya was sentenced to 30 years in prison and Rosales to 20. The appeals present only procedural questions.
Gaya complains about the judge's denial of his request, made as the trial was about to start on the morning of May 6, 2008, for a continuance to enable him to find a new lawyer. The government argues that he waived his objection to the judge's ruling because when the judge told him his only choice was between staying with his lawyer and representing himself, he chose the former. To waive a claim is to give it up voluntarily. It is doubtful that Gaya did that. The denial of his request for a continuance forced him to choose between staying with his current lawyer and representing himself; he sensibly chose the lesser of the two evils.
It would be different had he changed his mind and decided he wanted to stick with his lawyer. It's true that the judge said the lawyer was "an excellent lawyer" and that Gaya said "Yeah, it is fine, your Honor. I will just go with what you say. I will go with [his present lawyer]." But he said this after the judge had said: "I am not willing to put off the trial for you as a result of this." So Gaya's only choice was between representing himself and sticking with his current lawyer. The fact that he chose the latter course doesn't mean he was abandoning his request that the judge grant a continuance to enable him to find a new lawyer.
Which is not to say that he was entitled to a continuance. Had he told the judge, "I don't like my court-appointed counsel; I want you to appoint David Boies to represent me," and the judge had replied that he wouldn't do that and therefore Gaya had to choose between sticking with his existing counsel and representing himself, Gaya could argue on appeal that the judge should have appointed Boies, but of course the argument would fail. And similarly in this case, though Gaya preserved his argument that he was entitled to a continuance the judge was justified in rejecting it. Gaya did not request the continuance until the morning on which the trial began, which (unusually) was several days after the jury had been picked. That had to be too late, in the absence of really exceptional circumstances, to entitle him to a continuance to seek a new lawyer. Eve of trial is usually too late. United States v. Harris, 394 F.3d 543, 552 (7th Cir. 2005); United States v. Schmidt, 105 F.3d 82, 89 (2d Cir. 1997); United States v. Richardson, 894 F.2d 492, 496-97 (1st Cir. 1990). To grant such a request after a jury is picked would, by marooning the jury, enable a defendant unhappy with that jury to try his luck with a new one, since the time required for him to find a new lawyer and for that lawyer to get up to speed would be too great for the original jury to be kept waiting for trial to begin.
The circumstances would not have justified granting the request even if a jury hadn't been picked. Gaya's lawyer, who was court-appointed, had filed his notice of appearance in the district court on December 6, 2007, and the trial began on May 6, 2008. He was Gaya's second lawyer; the first had been appointed shortly after his arrest, which occurred exactly one year before the second lawyer filed his notice of appearance. (Gaya is now on his fourth lawyer.) Gaya had appeared twice in court before May 6-at a status hearing on April 10 and when the jury was selected on April 30. And he had had ample opportunity during the previous five months to express to the court his dissatisfaction with his lawyer and desire for a different one. He could have done that even if May 6 had been his first court appearance; had he told the lawyer at any time that he was dissatisfied with him and wanted his dissatisfaction conveyed to the court, the lawyer would have been duty-bound to comply. The reasons that Gaya gave the judge for his dissatisfaction with the lawyer (the lawyer "wasn't basing anything on my case. He wasn't defending me. He wasn't telling about for trial, nothing. Basically all the questions he was asking me, who is the key witness and if I wanted to cooperate") do not appear to have been of recent origin. Nothing had happened on the eve of trial to induce a dramatic change of mind about the lawyer's suitability. "Trial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burden counsels against continuances except for compelling reasons. Consequently, broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary 'insistence upon expeditiousness in the face of a justifiable request for delay' violates the right to the assistance of counsel." Morris v. Slappy, 461 U.S. 1, 11-12 (1983), quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964).
The case bears a superficial resemblance to United States v. Sellers, No. 09-2516, 2011 WL 1935735 at *3-*9 (7th Cir. May 19, 2011), which reversed the denial of a motion for a continuance sought as in this case to enable the defendant to obtain new counsel. The motion was filed only five days before trial was set to begin, but a jury had not been picked and the judge's grounds for the denial, which included complaints about the behavior of a different lawyer in an unrelated case and annoyance that the judge had canceled his attendance at the Seventh Circuit judicial conference in order to conduct the trial, seemed arbitrary. Moreover, the trial had been scheduled to be held only two months after the defendant was arraigned.
Rosales, our second appellant, also complains about representation. He testified at trial, and shortly before the end of the first day of his testimony the prosecutor who was cross-examining him tried to show him a government exhibit consisting of phone records, intending to undermine Rosales' denial of being Gaya's cocaine supplier. Rosales' lawyer objected on the ground that the records should have been shown to the defense earlier. The prosecutor responded that they were not evidence but merely proposed impeachment materials. The judge adjourned the trial for the day and said he would hear argument about the phone records and resolve the dispute over them when court reconvened the next morning. He told Rosales' lawyer "don't discuss the subject [with Rosales], don't discuss the substance of his testimony with him, including this," the "this" doubtless referring to the phone records. The judge added that the lawyer could tell his client that "I've [i.e., the lawyer has] asked that you [Rosales] take a look at things [the phone records] before you testify, but the judge says it's in the middle of cross-examination and as he does in every other case, [the judge has] forbidden me to discuss the substance of testimony in the midst of cross-examination."
That night Rosales' lawyer filed a memorandum with the court arguing that his client had a right under the Sixth Amendment to discuss with him the substance of the phone records, along with other, unspecified matters, during the overnight recess. The judge didn't respond to the memo (he probably didn't see it till the next day) but instead ruled when trial resumed that he was barring all cross-examination based on the phone records. Rosales was never asked about them at the trial.
He argues that even if the judge had barred him from discussing with his lawyer just the phone records, the judgment must be reversed, though that error-if it was an error (it wasn't)-was harmless squared; the phone records were never used by the government at the trial and anyway the evidence of Rosales' guilt of all charges was overwhelming. The reason it wasn't an error is that all the judge was doing was postponing discussion of the phone records between lawyer and client until he was prepared to hear argument on whether to allow them to be used to impeach Rosales' testimony, and the issue became moot when the judge decided not to allow them to be used for that purpose or, as it turned out, any other one. For the judge after making that ruling to have ordered a further recess in order to allow Rosales and his lawyer to discuss how impeachment with the phone records might have been countered had the judge permitted their use for that purpose would have wasted everyone's time; the issue had become academic.
But Rosales goes further. He argues that the judge's ruling barred all communication with his lawyer during the overnight recess, and that any impairment of a defendant's opportunity to consult with his lawyer, unless either utterly trivial or compellingly justified (or, preferably, both)-such as barring the defendant's lawyer from discussing the defendant's testimony with him during a 15-minute break in the defendant's cross-exami-nation, given the "virtual certainty that any conversation between the witness and the lawyer would relate to the ongoing testimony," Perry v. Leeke, 488 U.S. 272, 283-84 (1989)-is a "structural error" necessitating reversal even if admitted by everyone to be harmless.
The opaque term "structural error" is best understood as denoting an error that can't (at least without inordinate burden or difficulty) be determined to be harmless. United States v Marcus, 130 S. Ct. 2159, 2165 (2010); United States v. Gonzalez-Lopez, 548 U.S. 140, 148-51 (2006); Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991). If at the opening of the trial in this case the judge had said to our defendants "your guilt is so obvious that I'm going to dismiss the jury, skip the trial, and proceed directly to sentencing," it would be impossible to de-termine how certain their guilt really was, for if there were a trial the government's witnesses might recant or be discredited, or the defendants might unexpectedly testify convincingly. The inquiry into the harmlessness of the error in denying the defendants a trial would be the trial.
This understanding of "structural error" reconciles the cases with 28 U.S.C. § 2111, which states that "on the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties"-which is to say unless there is "a reasonable probability that the error affected the outcome of the trial." United States v. Marcus, supra, 130 S. Ct. at 2164; see also Fed. R. Crim. P. 52. If an "error might ...