U.S. v. Berkowitz

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation927 F.2d 1376
Docket NumberNo. 89-2125,89-2125
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Marvin BERKOWITZ, Defendant-Appellant.
Decision Date15 March 1991

Thomas M. Durkin, William V. Gallo, Asst. U.S. Attys., Office of the U.S. Atty., Chicago, Ill., for plaintiff-appellee.

William J. Stevens, Chicago, Ill., for defendant-appellant.

Before COFFEY, RIPPLE, and MANION, Circuit Judges.

MANION, Circuit Judge.

A jury convicted Marvin Berkowitz of two counts of obstruction of justice, 18 U.S.C. Sec. 1503, and one count of stealing government property, 18 U.S.C. Sec. 641. Berkowitz appeals, contending that the district court erred by denying his motion to suppress evidence, that certain actions by the district court deprived him of the assistance of counsel, that when he did have counsel he provided ineffective assistance, and that the district court improperly sentenced him. 712 F.Supp. 707. We reject Berkowitz's assistance of counsel and sentencing claims, but remand for an evidentiary hearing on his motion to suppress.


A grand jury indicted Berkowitz (along with others) in April 1988, alleging numerous counts of tax fraud, mail fraud, and obstruction of justice centering around the sales of allegedly fraudulent tax shelters (the "tax fraud case"). During its investigation of Berkowitz's activities, an investigation that began in 1983, the government accumulated almost 18,000 documents, plus other exhibits, all of which filled more than 50 boxes.

The government stored this evidence in a file room in a secured area of the United States Attorney's (USA) office in Chicago, and in June 1988 established a procedure to allow the defendants in the tax fraud case to inspect, examine, and photocopy those documents that were discoverable to prepare for trial. Boxes that were available for immediate inspection were marked with a "Y" or the word "Yes." However, some documents such as witness statements, internal memoranda, and work product were either not discoverable or, under Fed.R.Crim.P. 16, Northern District of Illinois Local Rule 2.04, or the Jencks Act, 18 U.S.C. Sec. 3500, were not discoverable until a later date. The government kept these documents in boxes marked with an "N" or the word "No." To gain access to the documents, a defendant or his attorney had to make an appointment with IRS Special Agent Merle Shearer. On the appointed date, either Shearer or IRS Special Agent Frank Calabrese would escort the defendant or his attorney to the file room containing the documents.

Of the defendants in the tax fraud case, Berkowitz showed the keenest interest in examining the government's documents and exhibits; in fact, he was the only defendant to review documents personally at the USA's office. Between July and October 1988, Berkowitz arranged to examine the documents and exhibits 17 times. According to Shearer, the first time he met with Berkowitz and his attorney he escorted them to the file room, explained the procedures to them, showed them which documents were and were not available to inspect, and showed them a photocopier they could use.

Berkowitz, however, turned out to be not particularly scrupulous about following the procedure established for inspecting the documents. On August 17, Calabrese escorted Berkowitz from the file room to the elevators in the reception area of the USA's office after a reviewing session. Calabrese returned to the file room to retrieve his briefcase, went back to the elevators, and found Berkowitz gone. When Calabrese returned to the secured area of the USA's offices (the elevators being in an unsecured area) he found Berkowitz standing in a stall in the men's washroom, apparently hiding. Berkowitz had no permission to return to the secured area.

On October 5, after a reviewing session, Calabrese escorted Berkowitz and his attorney to the first floor of the Dirksen Federal Building, in which the USA's office is located. A little later that day, Assistant United States Attorney William Cook, who was prosecuting the tax fraud case, saw Berkowitz leave the men's bathroom in the secured area of the USA's office and walk to the file room unescorted. After trying to find Calabrese, Cook confronted Berkowitz and asked where Calabrese was. Berkowitz said he was in the men's room; he was not. Cook then went back to the file room, and asked Berkowitz what he was doing. Berkowitz told Cook that he had left something in the file room, and started moving "No" boxes around. Cook told Berkowitz those boxes were off-limits, and Berkowitz left.

Judge Marshall, who was presiding over the tax fraud case, ordered the government to produce by November 15, 1988, a list of the evidence it intended to present at trial and the names of and any background material concerning witnesses it intended to call. To comply with this deadline, Shearer began to review the documents on October 26. At that time, Shearer discovered that about twelve of the fifty boxes of evidence were missing. An investigation revealed that none of the missing documents had been misplaced in the USA's office. One box was found on the Dirksen Building's seventh floor, near a freight elevator accessible both from a public area on the seventh floor and from the secured area of the USA's office.

Cook advised Berkowitz's co-defendants' attorneys that documents were missing, and gave them an inventory of the missing documents. Cook learned on November 4 that documents had been delivered to two attorneys' offices. That same day, receptionists for each of the attorneys identified Berkowitz's picture from a photographic array as the man who had delivered the documents.

The IRS agents and Cook put two and two together and concluded Berkowitz had stolen the missing documents. On November 7, Shearer, Calabrese, and other IRS agents set out to Berkowitz's home to arrest him. But despite the knowledge they had (knowledge that indisputably amounted to probable cause to arrest Berkowitz), and for reasons not apparent to us, the agents did not bother to obtain an arrest warrant.

The parties agree that when the agents arrived at the house, Shearer knocked on the door and Berkowitz opened the door to answer. At this point, their stories diverge. According to Shearer, after Berkowitz opened the front door Shearer immediately told him he was under arrest. Berkowitz did not resist or attempt to close the door; he simply asked if he could have his sports coat. An agent retrieved the coat, which was draped over a chair inside Berkowitz's house. According to Berkowitz, however, immediately after the door was opened, Shearer stepped into the house and then told Berkowitz he was under arrest. As the government presents things, the arrest preceded the agents' entry; as Berkowitz tells it, the entry preceded the arrest.

After arresting Berkowitz, Shearer asked him if there was anything he wanted. Berkowitz responded that his keys were in his office. Berkowitz started walking toward his office, and Shearer and Calabrese followed him. According to Shearer, he noticed on top of a desk in Berkowitz's office and in an alcove area under the desk numerous files and other documents (including original tax returns) that he recognized as some of the files and documents missing from the USA's office. Shearer said he was able to recognize those files and documents, in part, because his own handwriting was on some of the files. Shearer seized some of the records, and took Berkowitz away.

That day, the government obtained a warrant to search Berkowitz's home; the next day, the government obtained a warrant to search a safe in Berkowitz's house. Those searches turned up numerous documents and evidence that had been missing, including checks that had been torn up and thrown in a wastebasket. But despite those searches, the government never recovered the vast majority of missing documents.

A grand jury indicted Berkowitz, charging him with two counts of obstruction of justice, 18 U.S.C. Sec. 1503, and one count of stealing government property, 18 U.S.C. Sec. 641. Before trial, Berkowitz's appointed attorney, William Huyck, filed a motion to suppress the evidence found in Berkowitz's home during his arrest and the subsequent searches. Judge Bua, who presided over this case, denied the motion without holding an evidentiary hearing.

About two weeks before trial, Huyck asked the district court to continue the trial because he had had insufficient time before trial to review documents in the government's possession. Judge Bua denied the motion but urged the government to accommodate Huyck's request to review the documents. The next day, Huyck moved to withdraw so that Berkowitz could retain a new attorney. However, since the new attorney could not be ready to try the case on the date set for trial, the judge denied this motion also.

On the first day of trial, after the jury was selected and immediately before the opening statements, Berkowitz told the court that he wanted to represent himself. Judge Bua asked Berkowitz whether he was insisting on his constitutional right to represent himself. Berkowitz responded that he wanted to "waive the right to counsel, but ... not waive the right to have counsel"; in other words, he wanted to try the case himself but have standby counsel. Without inquiring any further into Berkowitz's understanding of what trying a case entailed or the disadvantages he might face by trying the case himself, the judge granted Berkowitz's requests, declaring that "based on the little I know about your background [exactly what the judge knew does not appear in the record] ... if any defendant is competent to represent himself, it is you...."

At trial, Berkowitz testified on his own behalf (with Huyck asking the questions), and admitted taking government documents out of the USA's office. However, this admission was necessary within the context of Berkowitz's...

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