U.S. v. Best

• Decision Date: 24 October 2005
• Docket Number: No. 04-1324.,04-1324.
• Citation: 426 F.3d 937
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jason BEST, a/k/a Jboo, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 937

426 F.3d 937

UNITED STATES of America, Plaintiff-Appellee, v. Jason BEST, a/k/a Jboo, Defendant-Appellant.

No. 04-1324.

United States Court of Appeals, Seventh Circuit.

Argued April 6, 2005.

Decided October 24, 2005.

COPYRIGHT MATERIAL OMITTED

Gary T. Bell (argued), Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.

Steven P. Blonder, Soo J. Choi (argued), Much, Shelist, Freed, Denenberg, Ament & Rubenstein, Chicago, IL, for Defendant-Appellant.

Before BAUER, RIPPLE, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

After a few false starts with appointed counsel, Jason Best decided that he wanted to represent himself at his trial on federal drug charges. The district court permitted him to do so, after warning him of the difficulties he faced and finding that his waiver of counsel was knowing and intelligent. Best began his trial acting as his own advocate. On the morning of the second day, however, he changed his mind and asked the court to reinstate his attorneys; the court did so. The jury went on to convict Best of one count of conspiracy to distribute more than 50 grams of crack cocaine in violation of 21 U.S.C. § 846, two counts of possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1), and two counts of maintaining a place for distribution of crack cocaine in violation of 21 U.S.C. § 856(a)(1). The court sentenced Best to life imprisonment.

In this appeal, Best attacks the court's initial acquiescence in his motion to waive his right to counsel, as well as the court's decision to continue with prior counsel for the balance of the trial and sentencing. Best also argues that he is entitled to be resentenced, because his sentence violates the principles announced in the Supreme Court's decisions in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (which had been decided by the time his opening brief was filed) and United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (which appeared prior to oral argument). We affirm Best's conviction and order a limited remand of Best's sentence under the terms set forth in United States v. Paladino, 401 F.3d 471, 483-84 (7th Cir.2005), for a determination whether the district court would impose a different sentence under the now-advisory Guidelines.

I

Best was involved in a crack cocaine distribution operation in Gary, Indiana, from 1997 to 2000. He ran at least six drug houses, supplying crack and marijuana, hiring and paying dealers, scheduling work shifts, and picking up the profits at the various locations. In 1997, the Gary Response Investigative Team (GRIT), a federal drug task force that included Gary police officers, began investigating drug activity in the Bronx area of Gary. GRIT arranged for several controlled buys at various drug houses. As a result of these buys, the police arrested several of Best's associates, who agreed to cooperate in the government's investigation.

On November 9, 1997, three police officers followed Juble Hairston, a suspected drug dealer, to 532 Hovey Street. Hairston entered the house and shut the door. The officers knocked and asked to enter the home. After a few minutes, Best's cousin opened the door and let the officers in. Upon their entry, the agents found seven to eight men including Best and Hairston. They also found crack cocaine, a scale, beakers, and plastic bags. After conducting a protective sweep of the home, they recovered two shotguns, three handguns, and an assault rifle. The agents also found $1,293 in Best's pocket.

On November 21, 1997, the GRIT officers spotted Garrett Smith, who they knew had an outstanding murder warrant, on the porch at 532 Hovey Street. Smith retreated into the home. Fearing for the occupants' safety, the agents followed him, forcing entry. There they found 35.7 grams of crack, ammunition, scales, and plastic bags. Best was once again on the scene, this time with $1,500 in his pocket. According to the testimony of Best's accomplices, Best then moved his operations to various other locations in Gary including 1536 Jackson Street and 798 Porter Street.

On October 17, 2000, a grand jury indicted Best along with five other individuals for their involvement in distributing and selling crack cocaine. The court appointed Clark W. Holesinger to represent Best. On January 19, 2001, a superseding indictment charged Best with nine counts related to his drug activities, one count for murder during the course of the drug conspiracy in violation of 18 U.S.C. §§ 924(j) and 924(c)(1), and one count for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At that point, the court appointed co-counsel for Best, attorney Gary S. Germann. By February Best had grown dissatisfied with his counsel. He wrote a letter to Judge Lozano requesting the appointment of new counsel. But on February 14, 2001, Magistrate Judge Rodovich held a hearing at which Best indicated that he was pleased with Holesinger; Judge Rodovich accordingly denied Best's motion. Tensions evidently continued, however. On September 25, 2001, Germann moved to withdraw from representing Best. The court granted his motion and appointed Thomas W. Vanes to replace him. Shortly thereafter, the government filed notice that it intended to seek the death penalty on the murder count. Judge Lozano reset the date for Best's trial for April 2002.

On November 26, 2001, Best sent another letter to Judge Lozano complaining that Holesinger was afraid of the prosecutor and that his counsel was not listening to him. Best indicated that he wanted to represent himself with the help of Vanes or have the court appoint an attorney from outside the area to represent him. On December 6, 2001, Judge Rodovich held another hearing on the matter, and once again, Best stated that he was satisfied with Holesinger's representation.

The court set March 1, 2002, as the deadline for all pretrial motions. Best's lawyers failed to get their motions in on time. They did, however, file a motion to sever the murder and felon-in-possession counts from his drug charges, which the court granted on May 28, 2002. At the same time, it set July 15, 2002, as the start date for the trial on the drug charges. On June 21, 2002, less than a month before the trial was scheduled to begin, counsel asked for leave to file late motions to suppress on Best's drug charges. The reason they gave for their tardiness was their preoccupation with Best's death penalty charge, which they had successfully managed to sever from the drug case just a few weeks earlier. Judge Lozano denied their motion.

On July 12, 2002, Best sent another letter to Judge Lozano indicating that he wished to proceed pro se. Just before trial was to start on the 15th, Judge Lozano himself held a hearing on Best's renewed request. At the hearing, Judge Lozano asked about Best's legal knowledge and skills. He specifically quizzed Best on his knowledge of the Federal Rules of Evidence, the Federal Rules of Criminal Procedure, the Federal Sentencing Guidelines, and the law. In addition, he repeatedly warned Best of the dangers of self-representation and the exposure he faced on his upcoming death penalty trial. Before accepting Best's waiver, he warned:

Mr. Best, I must advise you that, in my opinion, you would be far better defended by a trained lawyer who is accredited by a State Bar Association and by the state itself, than you could be by defending yourself. I think that it is unwise for you to try to represent yourself. You are not familiar with the law sufficient [sic] to defend yourself. You are not familiar with the Court's procedures sufficient [sic] to defend yourself. You are not familiar with the Rules of Evidence sufficient [sic] to defend yourself. I would strongly urge you not to try to represent yourself.

The judge then asked whether Best was making his decision "entirely voluntarily and knowingly." After Best repeatedly responded that he understood the implications of his decision, the court found that Best "knowingly and voluntarily waived his right to counsel" and permitted Best to represent himself. It then appointed Holesinger and Vanes to serve as standby counsel.

Best quickly became disillusioned with self-representation. He handled the case only during the selection of the jury and the first day of trial. On the morning of the second day, he asked the court to reinstate Vanes and Holesinger. Unenthusiastic, the two lawyers immediately filed a motion to withdraw and a motion for a mistrial. Vanes explained that the restraints that the court had imposed on them in their role as standby counsel had made effective representation impossible. They also complained that the first day of trial had irreversibly harmed Best's case in a number of ways: the government had introduced evidence about the November 9, 1997, search of 532 Hovey Street despite the fact that the court had sustained Best's objection based on the lack of a search warrant; GRIT supervisor Mark Becker was permitted to testify that GRIT was involved in drug and gang investigations; and Best failed to object when Gary Police Officer Troy Campbell testified that a certain exhibit was an accurate copy of Best's parole ID card with the exception of certain redactions, which was a veiled reference to Best's criminal history. Notwithstanding both the lawyers' objections and Best's, the court reinstated Vanes and Holesinger as Best's counsel and proceeded with the trial. On July 23, 2002, the jury convicted Best on five of the seven counts.

On August 26, 2002, Best filed a pro se motion for a new trial, claiming that Vanes and Holesinger had rendered ineffective assistance of counsel. Best complained that they had failed to investigate and call witnesses whom Best had identified; they had failed to file timely motions to suppress; and they had failed to object to the indictment, jury...