U.S. v. Alden

• Decision Date: 30 May 2008
• Docket Number: No. 07-1709.,07-1709.
• Citation: 527 F.3d 653
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael L. ALDEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

527 F.3d 653

UNITED STATES of America, Plaintiff-Appellee, v. Michael L. ALDEN, Defendant-Appellant.

No. 07-1709.

United States Court of Appeals, Seventh Circuit.

Argued February 20, 2008.

Decided May 30, 2008.

James M. Cutchin (argued), Office of the United States Attorney, Benton, IL, for Plaintiff-Appellee.

Brendan Shiller (argued), Chicago, IL, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and BAUER and WOOD, Circuit Judges.

BAUER, Circuit Judge.

Defendant-Appellant Michael Alden was convicted of conspiring to manufacture, to possess with the intent to distribute, and to distribute in excess of 500 grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Alden appeals various rulings made by the district court, as well as his sentence. For the following reasons, we affirm.

I. Background

From 1998 until 2004, Alden, along with approximately thirty other individuals, manufactured and sold methamphetamine throughout several counties in southern Illinois. A grand jury returned a suppressed indictment on July 7, 2004, charging conspiracy to manufacture, to possess with the intent to distribute, and to distribute in excess of 500 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Alden was represented by the Federal Public Defenders Office for his arraignment on July 9, 2004; that same day, the district court individually appointed Alden an attorney ("Attorney # 1").

After three superceding indictments and a lapse of two years, the case went to trial. During the two years between indictment and trial, three different attorneys were appointed to represent Alden, none to his liking.

On October 4, 2004, Alden filed a pro se motion for appointment of new counsel, claiming that Attorney # 1 refused to file a laundry list of motions. Attorney # 1 advised the district court that Alden called his office, cursed at him, and threatened to "go after" him if he did not do the things Alden wanted. Attorney # 1 explained that he was willing to file all motions that were consistent with his ethical obligations to the court, and that he had been trying to work with Alden to get the information needed to file certain motions, but Alden had refused to communicate with him. Alden persisted in his demand for new counsel, and the district court advised Alden: "I'm going to bend over backwards to satisfy you, and I'm going to let [Attorney # 1] withdraw if he wants to, and I'll get another attorney. I'll tell you this. I don't know who it will be. I'll appoint another attorney, and if that doesn't work out, you're on your own."

On November 4, 2004, Alden was appointed his second counsel ("Attorney #2"). A few months after that appointment, however, Attorney #2 filed a motion to be appointed standby counsel and to allow Alden to proceed pro se, since Alden insisted on continuing to file pro se motions despite Attorney # 2's representation. Shortly thereafter, Alden filed another pro se motion of ineffective assistance of counsel in which he complained that Attorney # 2 was not filing motions that he felt should have been filed.

On September 8, 2005, the district court conducted a hearing on Attorney # 2's motion and Alden's pro se motions. Attorney #2 explained that he filed the motions which he believed were consistent with his ethical obligations and that he had explained to Alden the dangers associated with filing pro se motions (e.g., that they become part of the court record and the prosecution gets copies of them) and representing himself. The district court told Alden that Attorney # 1 and Attorney # 2 were very good lawyers, and that Alden would have to make up his mind as to whether he would accept Attorney #2's services or represent himself. The district court told Alden:

I think you would not be well served if you didn't take [Attorney # 2's] services. I think it would be the wrong thing for you to do, but you've got to fish or cut bait today. You're going to have to say yes or no one way or the other.... I'm going to hear from you what you want to do. You want to represent yourself or do you want [Attorney # 2] to do it? If you represent yourself I'll have him to serve as standby counsel.... He's rendering good service to you, and that's all anybody could do.... You have adequate counsel, and I'm going on record with that, you have adequate counsel.... I can't give you anybody else that's more competent than he is to represent you.

Alden refused to answer the district court's question and said, "I don't want him to represent me, and I don't want to represent myself." The district court advised Alden that he could hire private counsel at his own expense, but Alden maintained that he could not afford private counsel. The district court then ruled: "You made a decision that based on what you say and the tenor of this whole [hearing], you don't want [Attorney # 2] to represent you. You want to represent yourself."

For the next thirteen months, Alden represented himself (with Attorney # 2 as standby counsel), filing numerous motions with the district court. On August 2, 2006, Attorney # 2 filed a motion to withdraw as standby counsel. Another hearing was held, and Attorney # 2 explained to the court that Alden had "hit on" and threatened his secretaries, and had threatened him with physical harm. On August 30, 2006, the district court granted Attorney # 2's motion to withdraw, and appointed Attorney # 3 to serve as standby counsel to Alden. Less than a month later, Alden filed a pro se filing entitled "Lawyer Issues," in which he complained that Attorney # 3 would not file any motions challenging the validity of the suppressed indictment filed by the government.

On October 10, 2006, the district court held a hearing and appointed Attorney # 3 to be Alden's full counsel. However, Alden maintained that he was not adequately represented because Attorney # 3 would not argue that the suppressed indictment was invalid and would not commit to calling every witness that he wanted called. When the district court explicitly asked Alden if he wanted Attorney # 3 to represent him, Alden responded affirmatively. Trial was then scheduled to commence on November 14, 2006.

On November 7, 2006, Attorney # 3 advised the court that he had recently received over one thousand pages of recent discovery documents, and that he would not be ready to effectively represent Alden on the trial date of November 14, 2006. Attorney # 3 requested a continuance, but Alden refused to agree to a continuance and said he would waive the automatic thirty-day continuance to which he was entitled under the Speedy Trial Act. Alden said that he would rather represent himself on November 14, 2006 than have any delay to allow Attorney # 3 to properly prepare for trial. The district court advised Alden that the mandatory statutory penalty he faced if convicted was twenty years to life, that federal criminal conspiracy cases were complicated and subject to broad and complex rules of evidence, that he would be disadvantaged by his lack of legal training and experience in criminal defense cases, that representing himself would be unwise, and that pro se litigants are held to the same evidentiary and procedural rules as licensed attorneys. Alden stated that he understood all of these things. The district court asked Alden about his educational background, his experience with the criminal justice system and criminal trials, and again opined that Alden was ill-suited to proceed pro se. Despite these admonitions, Alden told the court that he wanted to represent himself, and the court appointed Attorney #3 standby counsel.

The trial began as scheduled on November 14, 2006. On the second day of trial, Alden filed more motions, including a motion to withdraw his waiver of the thirty-day continuance. That motion was denied, and after a three-day trial, a jury found Alden guilty of the drug trafficking conspiracy as charged.

On March 26, 2007, a sentencing hearing was held, at which Alden represented himself with Attorney # 3 as standby counsel. The district court agreed with the government's position that Alden was responsible for 5.1 kilograms of methamphetamine, and that Alden "knew that he was having his wife testify to something that was false," warranting a two-level upward adjustment for obstruction of justice under U.S.S.G. § 3C1.1. Based upon its findings, the district court determined that Alden's sentencing range was 324-405 months with a statutory range of imprisonment of twenty years to life. The district court sentenced Alden to 324 months' imprisonment. Alden timely appealed, and this Court appointed appellate counsel for Alden.

On October 11 and October 22, 2007, Alden filed pro se motions with this Court, in which he alleged ineffective assistance of appellate counsel because his attorney refused to raise concerns about the validity of the suppressed indictment and other issues that Alden wanted raised, and asked this Court to disregard appellate counsel's brief. Those motions, along with a pro se motion to reconsider those motions, were denied.

II. Discussion

Alden brings an array of arguments on appeal, including several in a supplemental brief filed by Alden himself. We address the arguments warranting discussion in turn.

A. The Indictment

Alden has persistently argued that the indictment for the drug conspiracy is invalid because it was "suppressed." We address this not because it has merit, but because we wish to put Alden's argument at rest once and for all. Undoubtedly, several attorneys and judges have already explained to Alden that the initial indictment was in no way defective because it was "suppressed." A suppressed indictment is simply an indictment filed underseal until the defendant is in custody, as allowed by Federal Rule of Criminal Procedure 6(e)(4).¹ See also 22 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure: Crim.3d § 830 (20...