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United States

United States District Court, Seventh Circuit

July 3, 2013



VIRGINIA M. KENDALL, District Judge.

Pro se Defendant Shariff Miller filed the following Pretrial Motions: (1) Motion for a Franks hearing; (2) Motion to Dismiss Count III of the Indictment against him charging him with possessing a firearm in connection with a drug trafficking crime pursuant to 18 U.S.C. 924(c); (3) Motion for Disclosure of Confidential Informer; (4) Motion to Suppress Evidence and to Order an Evidentiary Hearing; (5) Motion to Dismiss the Indictment on Grounds of Prosecutorial, Government and Local Officer Misconduct; and (6) Motion to Compel Production of Grand Jury Material.[1]


I. General Procedural Background

On May 26, 2009, a jury convicted Miller of possession with intent to distribute five grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1) (Count I), possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1) (Count II), and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (Count III). (Dkt. 76.) On December 22, 2010, this Court sentenced Miller to a total prison term of 20 years. (Dkt. 145.)

Miller appealed his conviction to the United States Court of Appeals for the Seventh Circuit and raised three issues. First, Miller argued that the search warrant that led to his arrest was issued without probable case because it was based solely upon uncorroborated information supplied by an informant of unknown reliability. United States v. Miller, 673 F.3d 688, 692 (7th Cir. 2012). Second, Miller objected to the introduction at trial of evidence that he had possessed, two months before his arrest, the same pistol the police found in the search. Id. Third, Miller asserted that the prosecution's use of the details of Miller's 2000 conviction for felony possession of cocaine with intent to distribute violated Federal Rule of Evidence 404(b) and that this Court erred in admitting that evidence at trial.

The Seventh Circuit rejected Miller's first two arguments, finding that the Court did not err by denying Miller's motion to suppress "because the officers executed the warrant in good-faith reliance on its issuance by the state court" and that the testimony regarding Miller's prior possession of the same pistol was circumstantial evidence of the charged crime, not improper propensity evidence. Id. at 693-696. However, with respect to Miller's third basis for appeal, the Seventh Circuit found that the Court abused its discretion by allowing the government to present evidence of Miller's 2000 conviction. Id. at 696-702. The court concluded that the "only purpose for which [the evidence] could have been used by the jury... was to draw an impermissible propensity inference" and thus the prejudicial effect of admitting the prior conviction substantially outweighed its probative value. Id. at 696. The Seventh Circuit reversed Miller's conviction on the charge of possessing crack cocaine with intent to distribute and on the related charge of possessing a firearm in furtherance of a drug trafficking crime (Counts I and III). Id. at 692. The court affirmed Miller's conviction for being a felon in possession of firearms (Count II), finding that the conviction was supported by separate evidence and was not tainted by the impermissible propensity evidence. Id. The case was subsequently remanded to this Court for a new trial on Counts I and III and for re-sentencing on the felon-in-possession charge. Id.

II. Miller's Pro Se Status

The Court has gone to unprecedented lengths in this case to arm Miller with adequate legal representation for his criminal trial. Since the Government issued its indictment on August 8, 2008, Miller has enjoyed the representation of eight different attorneys, seven of which were appointed by this Court from either the Federal Defender Program or the federal criminal trial bar pursuant to the Criminal Justice Act, 18 U.S.C. § 3006, et seq. However, due to Miller's inability to take the advice of his trained counsel and his paranoia that every single one of his criminal defense attorneys was aiding the prosecution behind his back, Miller has either fired or forced each of his Court-appointed attorneys to withdraw based on ethical conflicts. Thus, despite the Court's best efforts, Miller has, through his conduct, waived his Sixth Amendment right counsel and chosen to represent himself at trial. Due to the practical perils and legal implications that follow a criminal defendant's decision to proceed to trial pro se, the Court takes this opportunity to review in detail the history of Miller's legal representation in this case.

A. Miller's Representation Prior to Remand

On August 8, 2008, Miller appeared before the Court for the first time after his arrest. (Dkt. 3.) At his initial hearing, the Court informed Miller of his rights and appointed Robert Seeder, an attorney from the Federal Defender Program. (Dkts. 3-4.) On September 16, 2008, Mr. Seeder presented an oral motion to withdraw as Miller's attorney due to differences he was having with Miller over how quickly he would be able to bring the case to trial. ( See Transcript from September 9, 2008 Status Hearing.) The Court granted Mr. Seeder's oral Motion to Withdraw and rescheduled Miller's arraignment for the following day. (Dkt. 11.)

On September 17, 2008, Kent R. Carlson, a federal panel attorney, was appointed to represent Miller and appeared with Miller at his arraignment. (Dkt. 13.) A little over four months later, on January 21, 2009, Mr. Carlson filed a motion for leave to withdraw his appearance as Miller's counsel. (Dkt. 29.) Mr. Carlson represented to the Court that Miller wanted him to withdraw because he was unhappy with the fact that the Court had not yet ruled on Miller's then-pending Motion to Suppress Evidence. ( Id. ¶ 5.) Mr. Carlson made clear that he was "filing this motion solely at SHARIFF MILLER'S request" and that he was "not seeking himself to withdraw as appointed counsel." ( Id. ¶ 6.) The Court held a hearing regarding the motion on January 26, 2009. (Dkt. 32.) At the hearing, the Court informed Miller that his frustration with the pendency of his Motion to Suppress Evidence had nothing to do with Mr. Carlson's representation. ( See Transcript of January 26, 2009 Motion Hearing, p. 4.) The Court explained to Miller that the Motion remained pending because the Court was still in the process of reviewing it and therefore any delay was entirely out of Mr. Carlson's control. ( Id. ) When asked whether he had any other problems working with Mr. Carlson, Miller stated that Mr. Carlson was "workable" and "seem[ed] like a very good lawyer." ( Id. ) The Court reminded Miller that he was already proceeding with his second Court-appointed attorney and that it was not normal practice to appoint a third attorney unless he had irreconcilable differences with his current counsel. ( Id. 7.) After discussing the matter privately with Mr. Carlson, Miller informed the Court that he was willing to move forward with Mr. Carlson as his attorney. ( Id. 8.)

The Court issued an order denying Miller's Motion to Suppress Evidence on January 29, 2009. (Dkt. 33.) Less than one week later, Miller directed Mr. Carlson a second time to file a motion for leave to withdraw his appearance. (Dkt. 34.) Mr. Carlson informed the Court that he was filing the motion because Miller demanded that his trial take place before the then-scheduled trial date of March 30, 2009. ( Id. ¶ 5.) Mr. Carlson stated that he had advised Miller that he would be unable to go to trial before March 30 due to a four-to-six week criminal trial in his schedule that was set to begin in mid-February. ( Id. ¶ 6.) Mr. Carlson also stated that he had advised Miller that the speedy trial clock on his case was not set to expire until April 30, 2009 and that even if he were able to go to trial before March 30, there was no guarantee that the Court would also be able to accommodate an earlier date. ( Id. ¶¶ 7-8.) As with his previous Motion to Withdraw, Mr. Carlson informed the Court that he was filing the motion solely at Miller's request and that he was "not himself seeking to withdraw as appointed counsel." ( Id. ¶ 11.)

Separately, Miller filed a pro se letter for appointment of new counsel. (Dkts. 37-38.) In that letter Miller stated that Mr. Carlson (1) was "not an effective and competent attorney"; (2) lied to him and never did what Miller asked of him; and (3) "poorly put together [Miller's] Motion to Suppress." ( Id. ¶¶ 1-2, 5.) Miller also expressed frustration regarding his disagreement with Mr. Carlson over how quickly the case should go to trial. ( Id. ¶ 3.) Miller added that he was discouraged by and did not "feel safe" with Mr. Carlson's representation. ( Id. ¶¶ 5-6.)

The Court held a hearing to address the Motion and Miller's letter on February 11, 2009. Miller reiterated his dissatisfaction with Mr. Carlson's work on his Motion to Suppress Evidence and stated that he felt that Mr. Carlson was lying to him about matters pertaining to his case. ( See Transcript from February 11, 2009 Motion Hearing, p. 9.) The Court once again reminded Miller that Mr. Carlson was his second Court-appointed attorney and informed him that a third attorney would likely request a trial date after March 30, 2009. ( Id. 10.) Miller stated that he would accept a later trial date if it meant that he could work with another attorney. ( Id. 10-11.) The Court granted Mr. Carlson's Motion to Withdraw based on irreconcilable differences and ordered that another attorney be appointed to represent Miller. ( Id. 12.) At the conclusion of the hearing, the Court warned Miller that this would be the last time the Court would appoint a new attorney to represent him. ( Id. 12.)

Miller's third Court-appointed attorney, John M. Beal, filed his appearance on February 18, 2009. Mr. Beal represented Miller through his pre-trial, trial, and post-trial proceedings. (Dkts. 39-125.) On May 13, 2010, after his conviction but before sentencing, Miller informed the Court that he wanted another attorney appointed to represent him due to a disagreement with Mr. Beal regarding his sentencing proceedings. ( See Transcript from May 13, 2010 Hearing.) Despite its own view that Mr. Beal had done an outstanding job representing Miller, the Court asked Mr. Beal to withdraw and ordered that the Federal Defender Program appoint new counsel for Miller's sentencing. ( Id; Dkt. 126.) One week later, Linda M. Babich filed an appearance on behalf of Miller. (Dkt. 128.) Ms. Babich represented Miller during his sentencing and filed a Notice of Appeal on his behalf following the entry of Judgment. (Dkt. 141.)

B. Miller's Representation Following Remand

On June 8, 2012, following the Seventh Circuit Court of Appeals' remand for a new trial on Counts I and III, attorney Joshua Adams filed an appearance on Miller's behalf. (Dkt. 192.) Mr. Adams was the fifth attorney appointed to represent Miller in his proceedings before the District Court. His tenure as Miller's attorney, however, would be short-lived. On July 26, 2012, Miller submitted an oral request to have Mr. Adams withdraw as his attorney on the basis that Mr. Adams refused to file the motions Miller wanted filed on his behalf. ( See Transcript of July 26, 2012 Motion Hearing.) The Court reminded Miller that Mr. Adams was the sixth lawyer to represent him in this case and warned that although he had a right to a lawyer, he did not have a right to the lawyer of his choice.[2]( Id. ) The Court then asked Mr. Adams whether he would be able to continue to represent Miller. ( Id. ) Mr. Adams informed the Court he could not in good faith file the motions Miller sought to present to the Court and thus could not serve as Miller's counsel in this matter. ( Id. ) Once again, the Court accommodated Miller's request and granted the oral motion to have Mr. Adams's withdraw from the case. ( Id. ) The Court informed Miller that it would appoint his "seventh and final attorney" and warned that if he disagreed with his new attorney's advice, he would be forced to represent himself. ( Id. ) Miller responded, "I understand that. If I don't work then I have to go pro se. I mean you gave me my warning you told me and I understand." ( Id. )

Charles J. Aron filed his appearance on behalf of Miller on July 29, 2012. (Dkt. 209.) Mr. Aron would be Miller's seventh attorney in this case and sixth attorney in his District Court proceedings. On November 19, 2012, less than four months after filing his appearance, Mr. Aron filed a motion to withdraw, stating that his relationship with Miller had deteriorated to the point where he could no longer provide representation in this case. (Dkt. 229, ¶ 6.) On November 28, 2012, the parties appeared before the Court for a hearing on the motion. ( See Transcript from November 28, 2012 Motion Hearing.) Like Mr. Adams before him, Mr. Aron represented to the Court that he could no longer serve as Miller's counsel because Miller wanted him to file certain motions that he could not file in light of his ethical obligations to the Court. ( Id. )

The Court granted Mr. Aron's motion to withdraw and informed Miller he would need to move forward pro se due to his inability to work with his previous attorneys. ( Id. ) However, in an effort to allow Miller to have some form of legal assistance without placing a member of the defense bar in an ethical bind, the Court proposed to Mr. Aron the possibility of remaining in the case as Miller's standby counsel. ( Id. ) Mr. Aron agreed to appear in a standby capacity but informed the Court that he would not file any motions on Miller's behalf that he found "ethically inappropriate." ( Id. ) Miller initially rejected the Court's offer, insisting that he be appointed a different standby counsel that felt the same way he did about certain jurisdictional and constitutional challenges he intended to bring to the Court's attention. ( Id. ) The Court explained to Miller that his lawyers were officers of the Court and had an ethical obligation to refrain from filing motions that were without a factual or legal basis or otherwise frivolous. ( Id. ) Miller insisted that his challenges were not frivolous but based on the Fourth, Fifth, Sixth, Ninth, Tenth, and Fourteenth Amendments of the United States Constitution. ( Id. ) The Court informed Miller that it had never in its history given a defendant seven attorneys and reminded him once again that he did not have a right to a lawyer of his choice. ( Id. ) The Court explained to Miller that he could either move forward with Mr. Aron as his standby counsel or he could represent himself. ( Id. ) Miller chose neither option and instead requested that the Court appoint an eighth attorney to represent him in a standby capacity. ( Id. ) The Court took Mr. Aron's Motion to Withdraw under advisement and continued the hearing to December 12, 2012. ( Id. )

At the December 12 hearing, the Court again asked Miller whether he would be willing to work with Mr. Aron as his standby counsel. ( See Transcript from December 12, 2012 Motion Hearing.) Miller reiterated that he wanted a standby attorney who would help him argue the constitutional and jurisdictional issues he felt needed to be brought to the Court's attention. ( Id. ) The Court reminded Miller of its July 26, 2013 warning:

[B]ack on July 26th when I appointed you your seventh attorney, I stated the following:
"Mr. Miller, you will have your 7th and final attorney appointed to try the case with you. If you disagree with that attorney's advice, you're on your own.
And you're going to have to pro se case. You are not going to have any attorney represent you. I have given you seven attorneys to work with."
And you responded, "Can you give me an attorney that's not in the same building with them? It seemed most like every attorney that I had is all from - they are all in one big office."
I responded "Mr. Miller you don't have any attorney of your choice unless you want to pay for one."
And you said "I - if I had the money, I would."
I responded "You don't. And so I've given you six very competent attorneys. They are not from the same firm. They work in a building and there's lots of defense attorneys in that same building. Does not mean that they're working together. No one is conspiring here. So I'm going to give you an attorney and listen this is very firm if you cannot work with this attorney, I will recuse that attorney and I will allow that attorney to go on and will allow that attorney to withdraw and then you are on your own."
And you responded "I understand that. If it don't work, then I'll have to go pro se. I mean you gave me my warning, you told me, and I understand."
And then I said "I gave you your warning and I gave you six prior attorneys, and you said I understand."

( Id. ) (reading from Transcript of July 26, 2013 Motion Hearing) (quotation marks added).

Based on its July 26 warning and Miller's continued refusal to work with his attorneys, the Court determined that Miller, through his conduct, had waived his right to legal representation. ( Id. ) In so holding, the Court relied upon the Seventh Circuit Court of Appeals' decision in United States v. Oreye, 263 F.3d 669 (7th Cir. 2001). ( Id. ) In that case, Petitioner James Oreye appealed his conviction by a jury of federal drug offenses on the basis that his Sixth Amendment right to counsel had been violated when the district court refused provide him a third court-appointed attorney after he was unable to work with his first two court-appointed lawyers. Id. at 670.

Shortly after his arraignment, Oreye had expressed dissatisfaction with his court-appointed lawyer because the lawyer did not share in his view that the indictment against him was defective. Id. The district court allowed the first attorney to withdraw and appointed Oreye a second attorney. Id. Six days before Oreye's trial was set to begin, Oreye's second attorney filed a motion to withdraw on the basis that his client refused to cooperate with him. Id. The attorney made it clear that "he had filed the motion to withdraw only because Oreye and he had an irreconcilable difference of opinion over how to conduct the case...." Id. After deciding that further delay in the proceedings would be prejudicial to Oreye's co-defendants, who were to be tried with him, the district court gave Oreye a choice between (1) keeping his second attorney, (2) finding another lawyer who would be ready to go to trial on schedule, and (3) representing himself. Id. The court informed Oreye that "if he dismissed his attorney and didn't find a substitute at his own expense, he would have to proceed pro se." Id. The court also informed Oreye that in the event he chose to move forward pro se, it would appoint his second attorney as standby counsel. Id. Oreye proceeded to trial as a pro se criminal defendant with standby counsel and was convicted. Id.

Following his conviction, Oreye appealed to the Seventh Circuit Court of Appeals and arguing that his Sixth Amendment right to counsel was violated when the district court decided not to provide him with a third court-appointed attorney. Id. at 670-71. In support of this position, Oreye pointed to the fact that he had never explicitly stated that he wanted move forward with his case pro se. Id. The court disagreed, finding that "a defendant can waive his right to counsel through conduct as well as words." Id. at 670 (citing United States v. Irorere, 228 F.3d 816, 827-28 (7th Cir. 2000), United States v. Harris, 2 F.3d 1452, 1454-55 (7th Cir. 1993), and United States v. Fazzini, 871 F.2d 635, 641-42 (7th Cir. 1989)). In assessing the three-choice ultimatum the district court gave Oreye before his trial, the court found that "[a]s a matter of both logic and of common sense... if a person is offered a choice between three things and says no' to the first and the second, he's chosen the third even if he stands mute when asked whether the third is indeed a choice. This is provided the offer is clear." Id. at 670-71 (citing Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992)). The court also rejected the defendant's argument that the district court should have appointed a third lawyer to represent him, finding that "[a] defendant has no right to indefinite delays while he tries on new lawyers unless he has a reason for dissatisfaction with the old." Id. at 671 (citing Irorere, 228 F.3d at 827-28, Harris, 2 F.3d at 1454-55, and Fazzini, 871 F.2d at 641-42). The court determined that the defendant had "no good reason" to be dissatisfied with his first two attorneys. Id. Thus, "[g]iven the fact that an indigent defendant has a right to competent counsel but not a right to counsel of his choice, " the court held that the "[district court] judge was fully within his rights in refusing to appoint a third lawyer for Oreye." Id. (internal citations omitted).

In addressing the adequacy of the district court's warnings to Oreye regarding the perils of self-representation, the Seventh Circuit stated that a "judge placed in [the district court judge's] position is on the razor's edge in assisting a defendant to make an informed choice between representation by counsel with whom the defendant is irrationally dissatisfied and self-representation. If the judge exaggerates either the advantages of being represented or the disadvantages of self-representation, he will be accused of having put his thumb on the scale and prevented the defendant from making an informed choice." Id. at 672. Recognizing the trial court's dilemma, the Court of Appeals found that by mentioning the difficulties of self-representation on two occasions and pointing out to Oreye that he was unfamiliar with trial procedures and legal procedures, the district court's warnings were adequate and satisfied the standard set forth in United States v. Hill, 252 F.3d 919 (7th Cir. 2001). Id. at 672; see also Hill, 252 F.3d at 928-29 ("All a judge can do as a practical matter-all a judge need do as a legal matter-is ensure that the defendant knows his rights and avoids hasty decision.... Section 1654 and Faretta require courts to respect a litigant's demand for self-determination at the most critical moment in the criminal process. That right is not honored if judges must depict self-representation in such unremittingly scary terms that any reasonable person would refuse.").

Accordingly, in this case the Court informed Miller that it would not provide new legal representation and would instead appoint a different individual to act as standby counsel for his trial. ( See Transcript from December 12, 2012 Motion Hearing.) Miller expressed at length his frustration with this arrangement:

Okay. So I don't understand why he would refuse himself if - why he would withdraw I mean according to the Constitution I have a right to an attorney to adequate defense for my - for my trial and he's withdrawing. The first - the first attorney that I had withdrew because I asked for a speedy trial. I'm not asking these lawyers to withdraw. Out of the eight four have withdrew on their own, not because of... me not wanting them as my attorney. I don't understand why they withdrawing. You see what I'm saying? All I know is my constitutional right, I have a right to an attorney, to go trial and now you giving me stand-by counsel, you see what I'm saying? All I'm trying to do is have an adequate defense. Only thing I'm asking to argue are... legitimate arguments, I don't' know why they withdrawn, I don't know why they doing what they doing I'm asking them to do things for me in my defense.... I don't know why they not arguing how I'm asking to argue and that's where the problem is coming in at, after they argue it they don't argue it right, they persuade me that they arguing it right and it comes back not right because you denying it and then it's not being said how I'm asking for it to be said so I don't know how to go about it no other way of getting it said than going pro se but all I know is that the Constitution guarantees me an attorney, Constitution guarantees me to be secure, Constitution guarantees me the Fourth Amendment Fifth Amendment due process as well life and liberty so I don't understand how I'm not - I don't understand how I don't have a right to an attorney. You see what I'm saying? Four quit on me and I did not ask them to quit and then the other four they filed paperworks ineffective, inefficiently because they did not argue it right. I had a motion to suppress that you denied through the mail, you see what I'm saying? I never... had a hearing and every officer that's on my case has been fired, been resigned but everything was in good faith for these officers. I don't' how understand how it's in good faith these officers that are no longer officers for misconduct that they didn't conduct it in they duties do you see what I'm saying.

( Id. ) The Court proceeded to address each of Miller's questions:

Number one, you do have a right to have a counsel. You do not have a right to have the counsel of your choice. You have had seven highly competent attorneys represent you over the course of your case. All them are trained in the law and you are not.
Number two, those lawyers have an obligation to this Court to only present legally sufficient arguments that are based in fact and law. They must rely on their experience and their training and only to present those that are valid. If they do not believe they are valid, they are violating their oath of office as an officer of this Court and they may not bring what they believe is an improper motion, which is why your attorneys continue to withdraw, because you want them to do something that they do not believe is a valid motion under the facts and the law.
Number three, as you move forward, you may bring those motions because that is what you want. You don't believe they are right.... [Y]ou don't believe that the seven law degrees that came before you know what they're doing. You have the right now as a pro se person to present those issues to me and I will apply the law to the facts.
Number four, I did not grant the motion to suppress because based on the filings presented to me, you were not entitled to a hearing. You are only entitled to a hearing when facts are in dispute such that a factual dispute requires me to hear evidence from a hearing. I made a determination under the law that no such hearing was required.
Number five, you are still required - or you're still permitted to reraise that issue now that you're on your own. Which ...

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