USA v. Santos

• Decision Date: 19 January 2000
• Docket Number: No. 99-2934,99-2934
• Citation: 201 F.3d 953
• Parties: (7th Cir. 2000) United States of America, Plaintiff-Appellee, v. Miriam Santos, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 953

201 F.3d 953 (7th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Miriam Santos, Defendant-Appellant.

No. 99-2934

In the United States Court of Appeals For the Seventh Circuit

Argued November 10, 1999

Decided January 19, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 CR 47--Charles R. Norgle, Sr., Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Posner, Chief Judge, and Rovner and Diane P. Wood, Circuit Judges.

Posner, Chief Judge.

Miriam Santos, the Treasurer of the City of Chicago, was convicted of having violated the federal mail fraud and extortion statutes by extorting campaign contributions from banks and securities firms that hold or invest funds controlled by the Treasurer's office. 18 U.S.C. sec.sec. 1341, 1951. She was sentenced to serve 40 months in prison and to pay restitution in excess of $50,000, and she appeals, raising a number of issues. We begin with the issue of whether her constitutional right to the assistance of counsel was infringed.

She had been indicted on January 27, 1999, shortly after retaining a lawyer named David Stetler to defend her. At her arraignment on February 3 the government's lawyer asked the district judge to set the case for trial in late April or early May. Stetler pointed out that he was scheduled to begin a three- to four-month trial before a different federal district judge on February 15 and so couldn't represent Santos if her trial began at the time suggested by the government. The judge answered Stetler by scheduling the trial for April 14, explaining that he did "not intend to delay this case for three or four months while you engage in other matters." Stetler was not seeking a delay of "three or four months." A four-month trial beginning on February 15 would end in the middle of June, little more than a month after the latest date suggested by the government. Stetler promised that during his other trial he would prepare for the Santos trial and that he wouldn't seek a further continuance. He had a trial scheduled for July as well but was confident the schedule would not hold (in fact it did not), and so far as appears the issue did not figure in the judge's denial of the motion for a continuance; the judge gave many reasons for denying the motion but not that one, perhaps because Stetler had promised to stand aside if the other trial went forward in July and to have another lawyer represent Santos at her trial.

On February 10 Stetler filed a formal motion to continue the Santos trial until July. Although the government did not oppose the motion, the district judge denied it. His grounds were that a criminal trial should begin within 70 days after indictment (that being the period of "nonexcludable" time allowed by the Speedy Trial Act, 18 U.S.C. sec. 3161(c)(1), though few federal criminal trials take place so soon because exclusions are generously granted for a host of reasons authorized by the Act, sec. 3161(h)); that the federal judicial system would collapse if judicial schedules had to accommodate the prior commitments of busy lawyers; that any defendant who wanted to avoid a speedy trial could do so just by hiring a busy lawyer; that Santos has a high salary and could therefore afford to hire another good lawyer to replace Stetler; that she has a right to a prompt trial; that another lawyer in Stetler's office had filed an appearance (though he was a young lawyer who had never tried a case); and--the ground the judge particularly stressed--that when a public official is accused of abusing the office that he occupies, "the public has a tremendous issue [sic--the word must be 'interest'] in knowing whether the government can prove these allegations beyond a reasonable doubt."

So Stetler withdrew and on February 26 Chris Gair, a lawyer with another law firm, filed his appearance on Santos's behalf. The trial began as scheduled on April 14 and concluded on May 3.

The Sixth Amendment entitles a federal criminal defendant to the assistance of counsel. The government concedes as it must in light of the cases that this entitlement is infringed by the arbitrary denial of a continuance when the effect is to deny the defendant the lawyer of his choice. This is so even if the defendant is able to hire another competent, perhaps equally or even more competent, lawyer--otherwise, of course, there would not be a right to counsel of one's choice. Though some cases contain language inconsistent with this proposition--language which suggests that the arbitrary denial of a continuance is actionable only if it prevents the defendant either from being represented by counsel at all or from being effectively represented, see, e.g., Morris v. Slappy, 461 U.S. 1, 11-12 (1983); United States v. Harris, 2 F.3d 1452, 1455 (7th Cir. 1993); United States v. Arena, 180 F.3d 380, 397 (2d Cir. 1999)--these cases assume, and other cases, e.g., Wheat v. United States, 486 U.S. 153, 159 (1988), make clear, that there is indeed a constitutional right to counsel of one's choice, although it is less extensive than the other rights to counsel in the Sixth Amendment. See, e.g., id. at 159-60; United States v. Hughey, 147 F.3d 423, 431 (5th Cir. 1998); United States v. Sampson, 140 F.3d 585, 591 (4th Cir. 1998).

But appellate review of a ruling, denying a continuance, that is alleged to infringe the right to counsel of one's choice is deferential. E.g., United States v. Harris, supra, 2 F.3d at 1455; United States v. Hughey, supra, 147 F.3d at 431; United States v. Sampson, supra, 140 F.3d at 591. In deciding whether there was an abuse of discretion the appellate court must consider both the circumstances of the ruling and the reasons given by the judge for it. The salient circumstances here are that the case was not old, the indictment having come down only two and a half months before the scheduled trial date, so that if the continuance was granted the case would be tried within five months of indictment; the government did not oppose the continuance; and the judge had no scheduling conflict that would have led to a further delay had he granted the continuance. Nothing in these circumstances indicated that the grant would pose a hardship to anyone, and on the other side there was the defendant's interest, one of constitutional dignity, in being represented by the lawyer of her choice.

So we must attend carefully to the judge's reasons for denying the continuance. With all due respect, they do not hold water. The appearance by an inexperienced associate of Stetler's was an irrelevancy, as was the 70-day provision of the Speedy Trial Act, which is intended to assure not that federal criminal trials start in 70 days (they rarely do) but that the unexcused delay in bringing a case to trial not exceed that period. 18 U.S.C. sec.sec. 3161(c)(1), (h); United States v. Spring, 80 F.3d 1450, 1456 (10th Cir. 1996). An express basis for excusable delay is that it is necessary in order for the defendant to obtain counsel or to enable the defendant's counsel to prepare adequately for trial. sec. 3161(h)(8)(B)(iv). As for a defendant's right to a speedy trial, that is a right of the defendant. 18 U.S.C. sec. 3162(a)(2); cf. Barker v. Wingo, 407 U.S. 514, 528-29 (1972). And it has never been suggested that Santos engaged Stetler for the purpose of delaying her trial. If the fact that she might be able to hire a good lawyer to replace him (as she did) was a good reason for denying the continuance, the right to counsel of one's choice would be eviscerated for any person with a high salary, which seems to us to take class warfare too far.

We are also perplexed by the district judge's belief that it is the duty of a federal district judge to rush public officials to trial lest they continue to abuse their office. Santos is a municipal official rather than a federal official, and it is up to the city or the state, or to the United States in its capacity as enforcer of federal laws designed to deter public corruption at all levels of American government, to decide whether an indicted official should be permitted to retain her office until the charges against her are resolved. See, e.g., Fla. Stat. sec. 112.51(2) (authorizing the governor to suspend any elected or appointed municipal official who is indicted). No one but the district judge thought it important that Santos's trial begin in April rather than the end of June or beginning of July. This answers, incidentally, any contention that the government has its own right to a speedy trial. Certainly the government has an interest in the expeditious conduct of its prosecutions, but remember that it did not object to the continuance sought by Stetler. We conclude that it was an abuse of discretion to deny the continuance.

A more difficult question is the consequence of an improper denial of the right to counsel of one's own choice in a case in which the defendant is able to hire a highly competent substitute lawyer as a replacement and there is no contention--for there is none here--that the defendant would have had a better chance of winning with her original lawyer. The judge's error, in short, was harmless, but Santos argues that the denial of the right to counsel of one's choice is one of those so-called "structural" errors that are reversible per se (as recently reaffirmed in Neder v. United States, 119 S. Ct. 1827, 1833 (1999)), because the error either is serious yet its effect on the outcome of the particular case difficult to establish (an example is the denial of the right to a jury trial, e.g., Sullivan v. Louisiana, 508 U.S. 275, 280-82 (1993); Rose v. Clark, 478 U.S. 570, 578 (1986)) or infringes a right unrelated or only distantly related to the interest in making sure (so far as possible) that innocent people aren't convicted; allowing racially motivated peremptory challenges of...