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United States v. Thomas

United States Court of Appeals, Seventh Circuit

August 15, 2016

United States of America, Plaintiff-Appellee,
v.
Charles Thomas, Defendant-Appellant.

          Argued April 14,2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11 CR 415 - Gary Feinerman, Judge.

          Before Posner, Kanne, and Hamilton, Circuit Judges.

          Kanne, Circuit Judge.

         Domingo Blount spearheaded a narcotics-trafficking ring with Defendant Charles Thomas serving as security. Ultimately, law enforcement broke up the ring and charged many of its participants, including Thomas. After a series of disagreements with several attorneys, Thomas represented himself at his trial. He called Blount as a witness in his defense, and Blount denied Thomas's involvement in the conspiracy. Nevertheless, the jury convicted Thomas of all counts. Thomas appeals, challenging the district court's denial of his request for substitute counsel, the district court's finding that he waived his right to counsel, and the district court's imposition of a 2-level sentencing enhancement for suborning Blount's perjured testimony. We affirm.

         I. Background

         On June 16, 2011, the government charged Thomas with participating in a large-scale heroin conspiracy orchestrated by Blount. A grand jury returned an indictment against Thomas on September 20, 2011, charging him with conspiring to distribute narcotics in violation of 21 U.S.C. § 846; possessing narcotics with intent to distribute during a drug deal on October 25, 2010, in violation of 21 U.S.C. § 841(a)(1); and using a cellular telephone during the October 25 narcotics deal in violation of 21 U.S.C. § 843(b).

         A. Parade of Counsel

         The start of prosecution marked the start of Thomas's protracted difficulties with his lawyers. Shortly after the government filed the criminal complaint, Thomas retained counsel, who filed an appearance. On March 13, 2012, Thomas's first attorney moved to withdraw because of irreconcilable differences between attorney and client. The district court granted the motion to withdraw and appointed a second attorney.

         One month later, Thomas's second attorney moved to withdraw after receiving a letter from Thomas indicating that he did not want the attorney representing him any longer. On May 10, 2012, the district court granted the motion to withdraw and appointed a third attorney. But the third attorney also moved to withdraw one month after her appointment because Thomas told her he did not want her representing him any longer.

         On July 12, 2012, the district court held a hearing on the third attorney's motion to withdraw. The district court admonished Thomas that it could not continue to appoint attorneys indefinitely, but that it would grant the motion and appoint a fourth attorney. Thomas expressed misgivings about being appointed a fourth attorney, stating: "If they're not going to help me, I'm better off going pro se then." (Tr. 8, July 12, 2012.) The district court encouraged Thomas to either give the fourth attorney a chance or retain counsel.

         Thomas agreed to let the fourth attorney ("Attorney 4") represent him, and the district court appointed Attorney 4. Thomas, however, was not satisfied for long. On August 24, 2012, Attorney 4 moved to withdraw, claiming that Thomas did not want his representation.

         At a hearing on September 13, 2012, Thomas complained that Attorney 4 was "not even looking into" issues Thomas had raised. (Tr. 4, Sept. 13, 2012.) The district court ordered Thomas to write a list of concerns and discuss it with his attorney, and it postponed ruling on the motion to withdraw. The district court said that it would not allow Thomas to "cycle through lawyers" and that it would not appoint another attorney. (Id. at 13-14.) Attorney 4's motion to withdraw was withdrawn on October 17, 2012, after Thomas indicated that they had resolved their differences.

         That is until November 15, 2012, when Thomas again expressed that he was having a conflict with Attorney 4 over the propriety of filing a motion to dismiss the indictment. Thomas requested that the district court appoint him new counsel. The district court refused, finding that Attorney 4 was "providing [Thomas] with adequate and sufficient and able representation." (Tr. 11, Nov. 15, 2012.) The district court gave Thomas the choice to either continue with Attorney 4 or proceed pro se. Thomas refused both choices, prompting the district court to order that Attorney 4 would continue representation.

         The case proceeded without issue until August 1, 2013, when Thomas filed two pro se affidavits arguing that there were factual errors in the complaint against him. Attorney 4 moved to strike the affidavits, arguing that the court should not consider pro se filings from a represented party and that the issues raised should be addressed at trial. After discussing the motion at a hearing in which counsel and the district court explained to Thomas why the issues he raised had to be explored at trial, Thomas said, "I don't want him as my attorney." (Tr. 6, Aug. 28, 2013.) The district court responded that Attorney 4 had not engaged in any behavior that would justify removing him as counsel, and therefore, Thomas could either keep Attorney 4 or represent himself. Thomas chose to represent himself, and the district court set a hearing pursuant to Faretta v. California, 422 U.S. 806 (1975).

         B. First Faretta Hearing

         The district court held its first Faretta hearing on September 6, 2013. Thomas indicated that he did not want to represent himself but that he wanted "[t]o get another attorney." (Tr. 2, Sept. 6, 2013.) The district court reiterated that it had "been given no good reason why [Thomas was] dissatisfied with appointed counsel." (Id. at 4.) The district court presented Thomas with three choices: keep appointed counsel, retain his own counsel, or represent himself. Thomas said "No" to all three. (Id. at 5.)

         The district court, relying on our opinion in United States v. Or eye, 263 F.3d 669 (7th Cir. 2001), deemed Thomas to have chosen to represent himself through his rejection of either keeping his appointed counsel or retaining his own lawyer. The district court then instructed Thomas that through his actions he was invoking his right to self-representation and waiving his right to appointed counsel. After going through the Faretta inquiry and advising Thomas that it was "unwise" to represent himself, the district court asked for the final time whether Thomas would "like to continue to be represented by [Attorney 4]." (Id. at 16.) Thomas said, "Yes," and withdrew his request to represent himself. (Id.)

         C. Second Faretta Hearing

         Thomas kept Attorney 4, and the case was set for trial on December 2, 2013. But on November 25, 2013, coconspirator Domingo Blount pled guilty to all counts. Blount refused to implicate Thomas in his plea agreement, leading Thomas's counsel to file a motion to continue Thomas's trial in order to make Blount available to testify on Thomas's behalf.

         The trial was postponed, but Thomas's disagreement with Attorney 4 was not. On March 4, 2014, Thomas filed a pro se "Motion for Attorney to Withdraw." Thomas complained that his lawyer had not given him grand-jury transcripts, intercepted phone transcripts, cooperators' proffer interviews, and Rule 3500 materials.

         At a hearing on March 17, 2014, Attorney 4 explained that he tried to meet with Thomas but that Thomas refused to see him or respond to his emails. With respect to discovery materials, counsel indicated that they had either not been turned over from the government yet or that Thomas had already been provided with the material.[1] When asked whether there was "any other basis ... that [Thomas] ha[d] for wanting to part ways with [Attorney 4]," Thomas replied: "I just don't trust him, period. I don't believe nothing he say." (Tr. 14-15, Mar. 17, 2014.) Finding no grounds to excuse Attorney 4, the district court again explained Thomas's options. Thomas responded: "That's why I want to file a motion to proceed pro se." (Id. at 16.) Thomas hesitated, however, and it was resolved that if Thomas decided to proceed pro se, he would file a motion with the court.

         No such motion was filed. Five days prior to the scheduled trial date, on May 7, 2014, the district court held a pretrial conference. Thomas interjected that he had written a letter to the district court indicating that he "would go pro se." (Tr. 10, May 7, 2014.) The district court followed up, asking "are you saying that you would like to ...


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