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United States v. Sidney O. Sellers, 09-2516.

Upon arrest for possession of a handgun without the requisite license, an inventory search of Sellers’s car revealed several bags containing crack cocaine. Sellers was charged with and convicted by a jury of possession with intent to sell crack cocaine and possession of a firearm used in drug trafficking, and sentenced to 180 months’ incarceration.

In this court, Sellers argues that the district court deprived him of his Sixth Amendment right to choice of counsel by failing to grant a continuance.

Here, we focus on the particulars surrounding Sellers’s choice and retention of counsel, and the district court’s response.

Sellers initially retained attorney David Wiener to represent him against the drug and gun charges. Apparently, shortly after Sellers engaged Wiener, Wiener approached attorney Michael Oppenheimer and asked him to appear as secondary counsel.

On May 7, Sellers filed his motion for a continuance, which asserted first, that counsel had filed the motion to suppress on May 6 in reliance on the magistrate judge’s briefing schedule, and second, that Sellers required a continuance to allow him to proceed with his counsel of choice, David Wiener.

Sellers appeared before the district court judge again on Friday, May 16, after he informed the court that he wished to fire Oppenheimer. Sellers addressed the court and announced first, that he had not chosen Oppenheimer as his counsel, second, that he had retained Wiener, and third, that because Wiener had never appeared, he had been in contact with two additional attorneys, one of whom he hoped to hire.

On the scheduled date of trial, Monday, May 19, 2008, Sellers appeared with both Oppenheimer and his newly retained attorney.

The district court judge denied the informal motion to continue, explaining that he had already attempted to accommodate counsel by hearing an untimely motion to suppress. The court noted further that Sellers’s repeated promises that Wiener would file an appearance never came to fruition.

The district court then instructed Sellers that he was free to fire Oppenheimer (who, it is worth repeating, Sellers had never hired in the first place), but that if another attorney did not enter his appearance that day, Sellers would have to proceed to trial pro se. S

Sellers ultimately agreed “under protest,” as he put it, to continue with Oppenheimer as his counsel.

Following a three-day jury trial, Sellers was convicted on all counts. He was later sentenced to a term of imprisonment of 180 months. After unsuccessful post-trial motions, Sellers filed this appeal.

The Sixth Amendment grants a defendant the right to assistance of counsel. United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006). This includes the right, when the defendant has the means to retain his own attorney, to be represented by counsel of choice. Id. Consequently, a court cannot arbitrarily or unreasonably deny a defendant the right to retain chosen counsel. Carlson v. Jess, 526 F.3d 1018, 1024 (7th Cir. 2008).

The right is separate from the generalized due process right to a fair trial, and thus the deprivation of the right is complete when the defendant is erroneously denied counsel of choice. Gonzalez-Lopez, 548 U.S. at 148. Such a denial constitutes structural error and justifies reversal without inquiry into prejudice. Id. at 150.

The right to counsel and the right to engage counsel of one’s choosing, however, are not absolute. A court retains wide latitude to balance the right to choice of counsel against the needs of fairness to the litigants and against the demands of its calendar. United States v. Carrera, 259 F.3d 818, 824-25 (7th Cir. 2001). This means, of course, that trial courts have broad discretion to grant or deny a request for a continuance to substitute new counsel. Carlson, 526 F.3d at 1025.

“Only an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay” violates the Sixth Amendment right. Carrera, 259 F.3d at 825. In determining whether the decision was arbitrary, we consider both the circumstances of the ruling and the reasons given by the judge. United States v. Santos, 201 F.3d 953, 958 (7th Cir. 2000).

In its May 7 order, the district court offered three primary explanations for its initial denial of a continuance. First, the motion was filed past the deadline for pretrial motions set by the magistrate judge and only days before trial. R. 30 at 1-2. Second, Sellers’s preferred counsel had not yet filed an appearance and even if he had, the court would follow its own rule that if a defendant wishes to hire a new lawyer, that “new counsel take the case as they find it.” R. 30 at 2. Third, Oppenheimer had repeatedly missed other deadlines in the matter.

To determine whether the decision was arbitrary, we consider the reasons for denial articulated by the district court judge. See Santos, 201 F.3d at 958.

We begin with the court’s repeated statement—reiterated four times—that the continuance would be denied, in part, because “it is typically this Court’s rule that new counsel take the case as they find it.” This is not, however, the rule in this Circuit. Quite the opposite.

The Sixth Amendment demands that a district court may not arbitrarily and unreasonably deny a continuance to provide for choice of counsel. Carlson, 526 F.3d at 1024. Adhering to a rigid rule that “a lawyer must take the case as he finds it” is exactly the type of arbitrary rule that the Sixth Amendment prohibits. See id. at 1026. Thus a myopic insistence on proceeding with a scheduled trial date in the face of a valid request for a continuance is arbitrary and unreasonable. United States v. Miller, 327 F.3d 598, 601 (7th Cir. 2003).

Under Gonzalez-Lopez, this constitutional violation constitutes a structural error not subject to review for harmlessness. Id., 548 U.S. at 148-49, 152. It is impossible to know what different choices, if any, counsel of choice would have made in how they approached the pre-trial motions, how they defended Sellers at trial, and what impact those differences might have had on the outcome of the proceedings. Id. at 150.

The error affected the framework of the trial and pre-trial proceedings and denied Sellers his Sixth Amendment right to choice of counsel.

The judgment and sentence below are VACATED, and this case is REMANDED for a new trial, including all pretrial proceedings. The mandate shall issue immediately.