In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-4055, 10-1626
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JOSE G AYA and S ALVADOR R OSALES,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 06 CR 896, 896-2—Wayne R. Andersen, Judge.
A RGUED JANUARY 11, 2011—D ECIDED JUNE 14, 2011
Before E ASTERBROOK , Chief Judge, and C UDAHY and
P OSNER, Circuit Judges.
P OSNER , Circuit Judge. The defendants were tried to-
gether by a jury, and convicted, of a number of cocaine
offenses. Gaya was sentenced to 30 years in prison and
Rosales to 20. The appeals present only procedural ques-
tions.
Gaya complains about the judge’s denial of his request,
made as the trial was about to start on the morning of
May 6, 2008, for a continuance to enable him to find a
2 Nos. 09-4055, 10-1626
new lawyer. The government argues that he waived his
objection to the judge’s ruling because when the judge
told him his only choice was between staying with
his lawyer and representing himself, he chose the for-
mer. To waive a claim is to give it up voluntarily. It is
doubtful that Gaya did that. The denial of his request for
a continuance forced him to choose between staying
with his current lawyer and representing himself; he
sensibly chose the lesser of the two evils.
It would be different had he changed his mind and
decided he wanted to stick with his lawyer. It’s true that
the judge said the lawyer was “an excellent lawyer” and
that Gaya said “Yeah, it is fine, your Honor. I will just go
with what you say. I will go with [his present lawyer].” But
he said this after the judge had said: “I am not willing
to put off the trial for you as a result of this.” So Gaya’s
only choice was between representing himself and
sticking with his current lawyer. The fact that he chose
the latter course doesn’t mean he was abandoning his
request that the judge grant a continuance to enable
him to find a new lawyer.
Which is not to say that he was entitled to a continu-
ance. Had he told the judge, “I don’t like my court-ap-
pointed counsel; I want you to appoint David Boies to
represent me,” and the judge had replied that he
wouldn’t do that and therefore Gaya had to choose be-
tween sticking with his existing counsel and representing
himself, Gaya could argue on appeal that the judge
should have appointed Boies, but of course the argu-
ment would fail. And similarly in this case, though
Nos. 09-4055, 10-1626 3
Gaya preserved his argument that he was entitled to a
continuance the judge was justified in rejecting it. Gaya
did not request the continuance until the morning on
which the trial began, which (unusually) was several
days after the jury had been picked. That had to be too
late, in the absence of really exceptional circumstances,
to entitle him to a continuance to seek a new lawyer.
Eve of trial is usually too late. United States v. Harris,
394 F.3d 543, 552 (7th Cir. 2005); United States v. Schmidt,
105 F.3d 82, 89 (2d Cir. 1997); United States v. Richardson,
894 F.2d 492, 496-97 (1st Cir. 1990). To grant such a
request after a jury is picked would, by marooning the
jury, enable a defendant unhappy with that jury to try
his luck with a new one, since the time required for him
to find a new lawyer and for that lawyer to get up to
speed would be too great for the original jury to be
kept waiting for trial to begin.
The circumstances would not have justified granting
the request even if a jury hadn’t been picked. Gaya’s
lawyer, who was court-appointed, had filed his notice
of appearance in the district court on December 6, 2007,
and the trial began on May 6, 2008. He was Gaya’s
second lawyer; the first had been appointed shortly
after his arrest, which occurred exactly one year before
the second lawyer filed his notice of appearance. (Gaya
is now on his fourth lawyer.) Gaya had appeared twice
in court before May 6—at a status hearing on April 10
and when the jury was selected on April 30. And he
had had ample opportunity during the previous five
months to express to the court his dissatisfaction with
his lawyer and desire for a different one. He could have
4 Nos. 09-4055, 10-1626
done that even if May 6 had been his first court appear-
ance; had he told the lawyer at any time that he was
dissatisfied with him and wanted his dissatisfaction
conveyed to the court, the lawyer would have been duty-
bound to comply. The reasons that Gaya gave the
judge for his dissatisfaction with the lawyer (the
lawyer “wasn’t basing anything on my case. He wasn’t
defending me. He wasn’t telling about for trial, nothing.
Basically all the questions he was asking me, who is the
key witness and if I wanted to cooperate”) do not appear
to have been of recent origin. Nothing had happened
on the eve of trial to induce a dramatic change of mind
about the lawyer’s suitability. “Trial judges necessarily
require a great deal of latitude in scheduling trials.
Not the least of their problems is that of assembling the
witnesses, lawyers, and jurors at the same place at the
same time, and this burden counsels against continu-
ances except for compelling reasons. Consequently, broad
discretion must be granted trial courts on matters of
continuances; only an unreasoning and arbitrary ‘insis-
tence upon expeditiousness in the face of a justifiable
request for delay’ violates the right to the assistance of
counsel.” Morris v. Slappy, 461 U.S. 1, 11-12 (1983), quoting
Ungar v. Sarafite, 376 U.S. 575, 589 (1964).
The case bears a superficial resemblance to United
States v. Sellers, No. 09-2516, 2011 WL 1935735 at *3-*9 (7th
Cir. May 19, 2011), which reversed the denial of a
motion for a continuance sought as in this case to
enable the defendant to obtain new counsel. The motion
was filed only five days before trial was set to begin, but
a jury had not been picked and the judge’s grounds
for the denial, which included complaints about the
Nos. 09-4055, 10-1626 5
behavior of a different lawyer in an unrelated case and
annoyance that the judge had canceled his attendance
at the Seventh Circuit judicial conference in order to
conduct the trial, seemed arbitrary. Moreover, the trial
had been scheduled to be held only two months after
the defendant was arraigned.
Rosales, our second appellant, also complains about
representation. He testified at trial, and shortly before
the end of the first day of his testimony the prosecutor
who was cross-examining him tried to show him a gov-
ernment exhibit consisting of phone records, intending
to undermine Rosales’ denial of being Gaya’s cocaine
supplier. Rosales’ lawyer objected on the ground that the
records should have been shown to the defense earlier.
The prosecutor responded that they were not evidence
but merely proposed impeachment materials. The judge
adjourned the trial for the day and said he would
hear argument about the phone records and resolve
the dispute over them when court reconvened the next
morning. He told Rosales’ lawyer “don’t discuss the
subject [with Rosales], don’t discuss the substance of
his testimony with him, including this,” the “this” doubt-
less referring to the phone records. The judge added
that the lawyer could tell his client that “I’ve [i.e., the
lawyer has] asked that you [Rosales] take a look at
things [the phone records] before you testify, but the
judge says it’s in the middle of cross-examination and as
he does in every other case, [the judge has] forbidden
me to discuss the substance of testimony in the midst of
cross-examination.”
6 Nos. 09-4055, 10-1626
That night Rosales’ lawyer filed a memorandum with
the court arguing that his client had a right under the
Sixth Amendment to discuss with him the substance of
the phone records, along with other, unspecified matters,
during the overnight recess. The judge didn’t respond
to the memo (he probably didn’t see it till the next day)
but instead ruled when trial resumed that he was
barring all cross-examination based on the phone rec-
ords. Rosales was never asked about them at the trial.
He argues that even if the judge had barred him from
discussing with his lawyer just the phone records, the
judgment must be reversed, though that error—if it was
an error (it wasn’t)—was harmless squared; the phone
records were never used by the government at the trial
and anyway the evidence of Rosales’ guilt of all charges
was overwhelming. The reason it wasn’t an error is that
all the judge was doing was postponing discussion of
the phone records between lawyer and client until he
was prepared to hear argument on whether to allow
them to be used to impeach Rosales’ testimony, and the
issue became moot when the judge decided not to allow
them to be used for that purpose or, as it turned out,
any other one. For the judge after making that ruling to
have ordered a further recess in order to allow Rosales
and his lawyer to discuss how impeachment with the
phone records might have been countered had the
judge permitted their use for that purpose would have
wasted everyone’s time; the issue had become academic.
But Rosales goes further. He argues that the judge’s
ruling barred all communication with his lawyer during
Nos. 09-4055, 10-1626 7
the overnight recess, and that any impairment of a defen-
dant’s opportunity to consult with his lawyer, unless
either utterly trivial or compellingly justified (or, prefera-
bly, both)—such as barring the defendant’s lawyer
from discussing the defendant’s testimony with him
during a 15-minute break in the defendant’s cross-exami-
nation, given the “virtual certainty that any conversa-
tion between the witness and the lawyer would relate
to the ongoing testimony,” Perry v. Leeke, 488 U.S. 272, 283-
84 (1989)—is a “structural error” necessitating reversal
even if admitted by everyone to be harmless.
The opaque term “structural error” is best understood
as denoting an error that can’t (at least without inordinate
burden or difficulty) be determined to be harmless.
United States v Marcus, 130 S. Ct. 2159, 2165 (2010);
United States v. Gonzalez-Lopez, 548 U.S. 140, 148-51
(2006); Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991). If
at the opening of the trial in this case the judge had said
to our defendants “your guilt is so obvious that I’m
going to dismiss the jury, skip the trial, and proceed
directly to sentencing,” it would be impossible to de-
termine how certain their guilt really was, for if there
were a trial the government’s witnesses might recant or
be discredited, or the defendants might unexpectedly
testify convincingly. The inquiry into the harmlessness
of the error in denying the defendants a trial would be
the trial.
This understanding of “structural error” reconciles
the cases with 28 U.S.C. § 2111, which states that “on
the hearing of any appeal or writ of certiorari in any
8 Nos. 09-4055, 10-1626
case, the court shall give judgment after an examination
of the record without regard to errors or defects which
do not affect the substantial rights of the parties”—which
is to say unless there is “a reasonable probability that
the error affected the outcome of the trial.” United States
v. Marcus, supra, 130 S. Ct. at 2164; see also Fed. R. Crim.
P. 52. If an “error might infect an entire trial,” 130 S. Ct.
at 2166, assessing how the trial might have gone had
the error not been committed might well be impossible.
Thus, as the Supreme Court explained in United
States v. Gonzalez-Lopez, supra, with specific reference to
infringement of the right to counsel, the Justices base
a finding “of structural error upon the difficulty of assess-
ing the effect of the error.” 548 U.S. at 149 n. 4. “Different
attorneys will pursue different strategies with regard
to investigation and discovery, development of the
theory of defense, selection of the jury, presentation of
the witnesses, and style of witness examination and jury
argument. And the choice of attorney will affect whether
and on what terms the defendant cooperates with
the prosecution, plea bargains, or decides instead to go
to trial. In light of these myriad aspects of representa-
tion, . . . it is impossible to know what different choices
the rejected counsel would have made, and then to quan-
tify the impact of those different choices on the outcome
of the proceedings. Many counseled decisions, including
those involving plea bargains and cooperation with the
government, do not even concern the conduct of the trial
at all. Harmless-error analysis in such a context would
be a speculative inquiry into what might have occurred
in an alternate universe.” Id. at 150. In other words,
Nos. 09-4055, 10-1626 9
though the counsel the defendant had may have
appeared to do a perfectly fine job, the counsel he
wanted might have done better, and maybe even gotten
his client off.
This is a tenuous basis for distinguishing, as the cases
do, between a temporary interruption in representation
(the overnight recess in this case), on the one hand,
and ineffective assistance of counsel when there is no
interruption, on the other. The defendant who has a
lawyer, even an incompetent one, must to establish a
violation of his constitutional right to effective assis-
tance of counsel prove that he was prejudiced by the
lawyer’s incompetence, Strickland v. Washington, 466
U.S. 668, 687, 690-96 (1984); Stephenson v. Wilson, 619
F.3d 664, 671 (7th Cir. 2010)—and that’s a lot harder to do
than opposing a prosecutor’s claim of harmless error,
for the prosecutor must prove the harmlessness of a
constitutional error—and prove it beyond a reasonable
doubt. Compare Massaro v. United States, 538 U.S. 500,
505 (2003), with Chapman v. California, 386 U.S. 18, 24-26
(1967).
The Court in Gonzalez-Lopez grounded the difference
in treatment between denial of the right to counsel of one’s
choice and denial of the right to effective counsel on the
proposition that counsel cannot be said to be ineffective
unless his performance is likely to have caused his
client to lose the case. 548 U.S. 146-47. If the distinction
seems excessively conceptual, two practical reasons
support it: judges consider a judge’s error more serious
than a lawyer’s error; and a lawyer’s incompetence
10 Nos. 09-4055, 10-1626
is manifested in specific acts and omissions (more com-
monly the latter, such as failure to conduct an adequate
investigation), and judges believe themselves able to
assess the likely impact of specific acts or omissions on
the outcome of the trial.
In any event the cases, whether rightly or wrongly, do
deem interruptions in opportunities for communication
between lawyer and client categorically graver than
incompetent conduct of the defense—deem them candi-
dates for structural error and hence insulated from an
inquiry into whether the interruption was harmless.
United States v. Santos, 201 F.3d 953, 966 (7th Cir. 2000);
United States v. Triumph Capital Group, Inc., 487 F.3d
124, 131 (2d Cir. 2007); United States v. McLaughlin, 164
F.3d 1, 4 (D.C. Cir. 1998). That is why, rather than
saying that a 15-minute interruption is a harmless error,
the courts tend to call it a “trivial” violation of the right
to counsel, as in United States v. Triumph Capital Group,
Inc., supra, 487 F.3d at 134-35, which adds that it is “very
different from a harmless error inquiry.” Id. at 134, quoting
Peterson v. Williams, 85 F.3d 39, 42 (2d Cir. 1996). But
what’s meant, as the two cases just cited make clear, is
that the fact that the appellate court is confident that
the defendant would have been convicted even if the
error had not occurred does not excuse the error. It can
be excused only if it was too slight to impair the defen-
dant’s right to counsel significantly.
Were the question in this case whether the interrup-
tion in the opportunity for lawyer-client communication
had even a remote likelihood of changing the outcome
Nos. 09-4055, 10-1626 11
of the trial, the answer would be an emphatic “no”; the
evidence of Rosales’ guilt was overwhelming to the
point of being conclusive. But that would be conven-
tional harmless-error analysis. The analysis of harm
applicable to a violation of the right to counsel focuses
on the impact of the interruption on the ability of the
defendant’s lawyer to represent his client, even if the
outcome was foreordained—even if Clarence Darrow
and Perry Mason combined couldn’t have obtained an
acquittal of this defendant from a reasonable jury. To
make this assessment in the present case we’d have
to determine whether the discussions that Rosales’
lawyer might have had with his client during the
overnight recess at which he claims to have been
enjoined to silence could have altered Rosales’ responses
when cross-examination resumed the next day, or in
other words whether the answers he gave then might
have been different had he discussed with his lawyer
the forthcoming cross-examination (within the limita-
tions of permitted coaching, on which see Geders v. United
States, 425 U.S. 80, 89-91 and n. 3 (1976); Serrano v. Fischer,
412 F.3d 292, 302 (2d Cir. 2005)) during the overnight
recess.
We needn’t run this hare to the ground. The judge’s
error, if error there was, was invited by the harping of
Rosales’ lawyer on the phone records. “[A] party may
not ‘invite’ error and then argue on appeal that the error
for which he was responsible entitles him to relief.”
United States v. Johnson, 26 F.3d 669, 677 (7th Cir. 1994);
see also United States v. Rosby, 454 F.3d 670, 677 (7th
Cir. 2006); United States v. Fulford, 980 F.2d 1110, 1116
12 Nos. 09-4055, 10-1626
(7th Cir. 1992); United States v. Jewell, 614 F.3d 911, 919-20
(8th Cir. 2010). That is an a fortiori case of waiver, United
States v. Quinones, 511 F.3d 289, 321 (2d Cir. 2007); United
States v. Hamilton, 499 F.3d 734, 736 (7th Cir. 2007), and
there is no reason to exempt “structural errors.” Johnson
v. United States, 520 U.S. 461, 468-70 (1997); United States
v. Underwood, 130 F.3d 1225, 1228-29 (7th Cir. 1997)
(dissent from denial of rehearing en banc).
Read literally, the judge’s ruling did forbid Rosales’
lawyer to discuss the substance of the case, and not just
the phone records, with his client during the recess. But
the ruling should not be read literally. It was oral and
spontaneous, and the phone records were its topic and
trigger. If Rosales’ lawyer had unrelated matters that
he wanted to discuss with his client (or that he thought
his client wanted to discuss with him) during the
overnight recess, he should have told the judge that,
reminding him of how dimly the courts look on inter-
ruptions of opportunities for communication between
a criminal defendant and his lawyer.
When the judge announced the recess, the lawyer said:
“I’m not going to give my client any information on how
he should answer [the prosecutor’s question about the
phone records], but I do ask that I be able to meet with
him and talk about this”—the “this” referring to the
phone records. The prosecutor—rightly objecting to
a witness’s being shown or told the contents of an im-
peaching document before being asked the question that
might provoke an answer that the document could be
used to impeach, United States v. Stevens, 985 F.2d 1175,
Nos. 09-4055, 10-1626 13
1180 (2d Cir. 1993); United States v. Randolph, 456 F.2d 132,
136 (3d Cir. 1972); see United States v. Cerro, 775 F.2d 908,
914-15 (7th Cir. 1985)—suggested that the discussion be
postponed to the next morning, before Rosales was cross-
examined about the phone records. The judge agreed,
but the discussion was never held because he ruled the
next morning that the prosecutor couldn’t ask Rosales
about them.
Right after the judge had forbidden the lawyer to
discuss the phone records with his client during the
overnight recess, saying “don’t discuss the substance of
his testimony with him, including this” (the phone rec-
ords), the lawyer asked whether he was “excluded
from speaking to my client at all? If I don’t talk to him
about this, just about the process and the witnesses.” The
judge replied: “No, I think you can say to him that
I’ve asked you take a look at things before you testify,
but the judge says it’s in the middle of cross-examina-
tion and as he does in every other case, he’s forbidden
me to discuss the substance of his testimony in the
midst of cross-examination.” The lawyer said “Okay,” but
then added: “So I can at least explain to him what’s going
on,” and the judge said “Yeah” and the lawyer re-
sponded “Okay” and then the judge added: “you’ve been
asked to be able to review documents with him that
you think [the prosecutor] might wish to use, but I said
it’s in the middle of cross, no, and then we’ll see what
happens.”
So the only thing clearly forbidden was discussing
the phone records. Yet that night the lawyer filed a memo-
14 Nos. 09-4055, 10-1626
randum with the court in which he stated his under-
standing that he was forbidden to discuss “any matter
relating to the substance of [his client’s] testimony”
overnight and argued that the prohibition violated the
Sixth Amendment. That was too late. The lawyer must
have known that the judge wouldn’t see the memo
until the morning—when the overnight recess would
be over.
The exchange between judge and lawyer over what if
anything could be discussed during the overnight recess
is rich in ambiguity. But the lawyer himself seems to
think that it was mainly, maybe entirely, and in any
event critically about the phone records. In the memo
that he submitted to the district court that night he
again asked to be allowed to discuss them with his
client. And in his reply brief in this court he says that he
“was simply asking for the ability to hear what his client
had to say about the phone records” (emphasis added).
Any discussion of subjects unrelated to the phone
records probably would have been incidental, or even
accidental, for his opening brief says “there is no way to
know what information would have been exchanged or
what other subjects would have been discussed had this
conversation regarding the phone records and other
substantive matters related to testimony and strategy
occurred during the overnight recess.” He insisted and
still insists on his right to have discussed the phone
records with his client. (He had no such right, as we said.)
Particularly telling is an exchange between him and the
judge right after the judge said that the phone records
Nos. 09-4055, 10-1626 15
could not be used to impeach Rosales. The judge asked the
lawyer whether therefore the cross-examination of his
client could proceed and the lawyer responded: “Yes,
I think we should go ahead with Mr. Rosales’ testimony.”
Evidently the lawyer’s only concern had been with the
phone records, for with them out of the case he evinced
no desire for any additional time for conferring with
his client before the trial resumed.
In this court he fastens on one pair of words uttered
by the judge—“including this” (“this” meaning the
phone records)—to argue that the judge forbade him to
discuss any testimony with his client during the recess.
But had he been planning to discuss other matters with
his client he should have said to the judge: “I’ll stay
completely away from the phone records, as you’ve
directed, but I’d like permission—and I consider it my
client’s right under the Sixth Amendment—to discuss
with my client testimony unrelated to the records.” A
judge’s slip of the tongue, fatal if treated as a ruling
but easily corrected by the lawyer adversely affected by
it, is not a reversible error.
Rosales complains, finally, about the sentence. He was
given a sentence enhancement because of a previous
drug conviction that the government described as a
conviction of “manufacturing/delivering cocaine.” In fact,
though that had been the charge, the conviction was for
the lesser included offense of possession of cocaine. But
the sentence stated in the government’s submission
describing Rosales’ prior offense was accurate, and before
his sentencing for his current offense the government
16 Nos. 09-4055, 10-1626
moved to amend its submission to correct the descrip-
tion of the sentence for the prior conviction. 21 U.S.C.
§ 851(a)(1). The judge allowed the amendment and im-
posed the enhancement. The government’s error was
beyond harmless—it was utterly inconsequential.
A FFIRMED.
6-14-11