U.S. v. Algee

• Decision Date: 31 October 2002
• Docket Number: No. 01-2208.,01-2208.
• Citation: 309 F.3d 1011
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stanley E. ALGEE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1011

309 F.3d 1011

UNITED STATES of America, Plaintiff-Appellee, v. Stanley E. ALGEE, Defendant-Appellant.

No. 01-2208.

United States Court of Appeals, Seventh Circuit.

ARGUED September 4, 2002.

DECIDED October 31, 2002.

Amanda A. Robertson (Argued), Office of the United States Attorney, Benton, IL, for Plaintiff-Appellee.

Mark A. Brand, Monica M. Tynan (Argued), Quarles & Brady, Chicago, IL, for Defendant-Appellant.

Before FLAUM, Chief Judge, and CUDAHY and KANNE, Circuit Judges.

FLAUM, Chief Judge.

After a jury trial, Stanley Algee was convicted of conspiracy to distribute and to possess with intent to distribute crack cocaine, conspiracy to possess with intent to distribute marijuana, possession of a firearm by a felon, and use of a firearm during a drug-trafficking offense, and was sentenced to a total of 300 months' imprisonment. Algee now challenges his convictions and sentences, arguing among other things that his Sixth Amendment rights were violated when the district court disqualified his attorney of choice. We affirm.

I. BACKGROUND

In December 1996 Algee was arrested after he broke into a residence in Grand Tower, Illinois. He was later charged in an Illinois circuit court with armed violence, home invasion, armed robbery, aggravated battery, and unlawful possession of a weapon. Attorney Paul Christenson entered his appearance for both Algee and co-defendant Brent Battles.

Following his arrest Battles gave a taped statement implicating Algee, himself, and a third individual, Marvin Gates, in the Grand Tower incident. After Gates was arrested, Christenson entered an appearance on his behalf and moved to withdraw as counsel for Battles. The state, meanwhile, moved to disqualify Christenson from representing Algee and Gates, asserting that he had a conflict of interest due to his prior representation of Battles. The trial court granted the state's motion.

Algee and Battles were convicted following a jury trial and a bench trial, respectively. Gates was acquitted. On appeal, however, the Appellate Court of Illinois reversed Algee's and Battles's convictions, holding that the state had violated Illinois's speedy-trial statute. People v. Battles, 311 Ill.App.3d 991, 244 Ill.Dec. 109, 724 N.E.2d 997 (2000).

After their state convictions were reversed, Algee and Battles were indicted in federal district court on charges relating to the Grand Tower incident. Algee was specifically charged with unlawful possession of a firearm by a felon and using or carrying a firearm during and in relation to a drug-trafficking offense. A superseding indictment was later returned, adding the drug-distribution charges.

After Algee retained Christenson to represent him in the federal case, the government moved for disqualification, claiming that Christenson had an unwaivable conflict of interest because of his prior representation of Battles and Gates and because Christenson had testified as a defense witness during Algee's state-court trial. In support of its motion, the government asserted that Gates had given a statement implicating Algee in the Grand Tower offenses and was expected to testify against him. The government also pointed to the taped statement given earlier by Battles. After a magistrate judge denied the motion, the government moved for reconsideration, raising new allegations that Christenson had received cocaine from Algee in exchange for legal services. The magistrate judge then vacated his earlier ruling and referred the matter to the district judge. The same day, co-defendant Battles filed his own motion to disqualify Christenson, asserting that during the state-court proceedings "a direct conflict of interest arose between Mr. Christenson's representation of Mr. Battles and his representation of either Mr. Algee or Mr. Gates." Battles indicated in his motion that he was unwilling to waive the conflict.

A hearing was held on the two motions, during which the government advised the district court of new information that one of Christenson's then-clients, Eldridge Hartley, had recently implicated Algee and was expected to testify as a government witness. After considering arguments from both sides, the district court stated:

[T]he problem is ... where you [Christenson] represented another client, two of them that are potential witnesses against Mr. Algee, the present defendant before the Court that you represent — you represented all three of them at one time — how do we ever sort out, how do we ever sort out what information you got from them and to be able to set that aside and that can never be used or considered from them coming in on the witness stand and testifying against your client and you cross-examining them? ... [I]t's almost impossible for an attorney to represent two defendants in a criminal case at any time. And you must have talked to Mr. Battles. You must have talked to Mr. Gates. You must have acquired some information, and you're on the hot seat with this whole thing ethically.

The court also found that "the bare allegations of you [Christenson] being involved in a potential drug conspiracy with the client that you want to represent here poses enormous problems." Thus concluding that there was a material conflict that was nonwaivable, the court granted the government's and Battles's respective motions.

II. DISCUSSION

Algee's primary contention on appeal is that his Sixth Amendment rights were violated when the district court disqualified Christenson, his attorney of choice. It is well-settled, however, that a criminal defendant's right to his chosen attorney may be outweighed by a serious potential for conflict due to the attorney's prior representation of other defendants charged in the same criminal conspiracy. Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988); United States v. Combs, 222 F.3d 353, 361 (7th Cir.2000). Further, because of the dangers associated with multiple representation, a district court must be allowed "substantial latitude" in refusing waivers of conflicts of interest. Wheat, 486 U.S. at 163, 108 S.Ct. 1692. We therefore review a district court's refusal of a waiver only for an abuse of discretion. Combs, 222 F.3d at 360.

This case is similar to Wheat, where the Supreme Court upheld the district court's refusal to allow the defendant to substitute an attorney who had previously represented two other defendants charged in the same criminal conspiracy. 486 U.S. at 164, 108 S.Ct. 1692. The Court reasoned that the potential for conflict, when looking at the situation as it existed before trial, was evident — that is, in the likely event that the defendant's co-conspirators were to testify, his chosen counsel would have been unable ethically to provide vigorous cross-examination. Id. Thus, acknowledging that the trial court was in the best position to evaluate the facts and circumstances of each case, the Court concluded that there had been no abuse of discretion. Id.; see also Combs, 222 F.3d at 361-62 (district court was within its discretion in dismissing a defense attorney who had earlier given legal advice to a key government witness).

Here the district court was confronted with a situation like that in Wheat — Christenson, Algee's counsel of choice, had previously represented Battles, a co-defendant charged in the same criminal conspiracy. Further, Christenson had also represented Gates, whom the government intended to call as a witness, and was then currently representing Hartley, another potential government witness. Given these circumstances we cannot say that the court's decision to disqualify Christenson was an abuse of discretion. The court foresaw that Battles and Gates would be the principal witnesses for the government and reasonably concluded that ethical constraints would prohibit Christenson from cross-examining them in any meaningful way. This case in fact presents a more compelling argument for disqualification than did Wheat because Battles joined in the motion to disqualify Christenson, whereas the co-defendants in Wheat were willing to waive their rights to conflict-free counsel. Wheat, 486 U.S. at 156, 108 S.Ct. 1692; see also United States v. O'Malley, 786 F.2d 786, 792 (7th Cir.1986) (in deciding to disqualify defendant's chosen attorney, district court properly considered interests of the attorney's former client, who was also a key government witness, where that client had made it clear that he viewed the risk of an intrusion upon his attorney-client privilege as substantial).

Turning to Algee's remaining arguments, we initially address the government's contention that Algee has waived all of them. Waiver, however, involves intentional relinquishment, United States v. Woods, 301 F.3d 556, 560 (7th Cir.2002), here absent. Algee's arguments are thus forfeited, not waived, and so we review them for plain error. Id.

Algee contends that his convictions were the result of prosecutorial vindictiveness. In order to be successful on such a claim, a defendant must affirmatively show through objective evidence that the prosecutorial conduct was motivated by some sort of animus. United States v. Spears, 159 F.3d 1081, 1086 (7th Cir.1998). Algee gives four examples that he says shows animus in this case: (1) he faced a greater penalty under the federal charges than he received in state court for the same conduct; (2) the federal charges "were brought by the prosecutors who had prosecuted Algee on at least four prior occasions in Illinois state court and lost"; (3) the government "lodged allegations that Christenson had engaged in illegal conduct, ultimately leading to his disqualification as Algee's counsel of choice"; and (4) the government moved for an upward departure from the sentencing guidelines based on an under-representation of Algee's criminal history. These allegations do not rise to the level necessary to establish prosecutorial vindictiveness, especially under the lens of plain-error...