[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
----------------- ELEVENTH CIRCUIT
No. 03-16506 JULY 5, 2005
----------------- THOMAS K. KAHN
CLERK
D. C. Docket Nos. 97-03818-CV-JIC and 87-00879-CR-JIC
BENJAMIN BARRY KRAMER,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
-----------------------------------------------------------
(July 5, 2005)
Before DUBINA and WILSON, Circuit Judges, and LAWSON*, District Judge.
_________________
*Honorable Hugh Lawson, United States District Court for the Middle District of Georgia,
sitting by designation.
PER CURIAM:
Petitioner-Appellant Benjamin Barry Kramer appeals the district court’s denial
of his motion to vacate, set aside, or correct sentence, brought under 28 U.S.C.
§ 2255. This appeal is governed by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”). The district court granted a certificate of appealability
(“COA”) on whether Kramer had been denied “his Sixth Amendment right to counsel
of choice.” No reversible error has been shown; we affirm.
Kramer was convicted in a federal district court in Illinois of conducting a
continuing criminal enterprise and conspiracy to distribute more than 1,000 pounds
of marijuana. United States v. Kramer, 955 F.2d 479, 481 (7th Cir. 1992). He was
sentenced to life imprisonment without parole. Id. at 482. Kramer was represented
at the several-month Illinois trail by Albert Krieger and Mary Catherine Bonner.1
Kramer stated that he hired Krieger to be lead counsel and viewed Bonner as an
assistant.
Subsequently, Kramer was convicted in a federal district court in Florida of
several RICO and Travel Act-related offenses involving much of the same conduct.
1
Krieger was admitted to practice law in 1949, focuses mainly on drug and organized crime
cases, and has a prestigious reputation as a criminal-defense trial lawyer. Bonner, a family friend
of Kramer, was admitted to practice law in 1979 and was hired by Kramer to represent him in a
parole matter from an earlier conviction.
2
Kramer was sentenced to 45 years of imprisonment. Again he was represented by
Krieger and Bonner. More than three weeks into trial, Krieger was incapacitated by
back spasms and could not continue. Bonner took over Kramer’s defense. The
district court denied Bonner’s requests to sever Kramer from the case or to continue
the case until Krieger was able to return. Bonner continued to represent Kramer for
the remainder of the trial.2
Kramer argues that his Sixth Amendment right to counsel of choice was
violated when the district court refused to grant a continuance or sever his trial from
that of his codefendants after Krieger became ill and could not continue at trial.
Kramer claims he was forced to proceed with Bonner. He asserts: she was retained
as “second chair” counsel; she was not prepared to act as lead counsel; and she was
not the equal of Krieger. Kramer contends that the reversal of his conviction should
be automatic when counsel of choice in good faith becomes unavailable. He also
contends that he does not need to show that replacement counsel’s performance was
constitutionally inadequate.3
2
We need not recount here fully the factual circumstances surrounding Krieger’s illness and
the district court’s response; these things are set forth in the district court’s order denying Kramer’s
§ 2255 motion.
3
The government argues that Kramer has procedurally defaulted his counsel of choice claim
because he failed to raise it on direct appeal. The district court specifically declined to make a ruling
on procedural default and granted a COA on the merits of the substantive claim. We note that
Kramer failed to raise this issue on direct appeal, but could have. Bundy v. Dugger, 850 F.2d 1402,
3
“In a Section 2255 proceeding, we review legal issues de novo and factual
findings under a clear error standard.” Lynn v. United States, 365 F.3d 1225, 1232
(11th Cir.), cert. denied, --- U.S. ----, 125 S. Ct. 167, 160 L. Ed. 2d 154 (2004)
(internal quotation marks omitted).
A criminal defendant’s Sixth Amendment right to counsel encompasses the
right to a reasonable opportunity to select and to be represented by counsel of choice.
Birt v. Montgomery, 725 F.2d 587, 592-93 (11th Cir. 1984) (en banc). The right to
counsel of choice, however, is not absolute. Id. at 593. “At some point, that right
must bend before countervailing interests involving effective administration of the
1411 (11th Cir. 1988) (concluding that petitioner’s failure to raise counsel of choice claim on direct
appeal constituted procedural default); see United States v. Bowe, 221 F.3d 1183, 1189-91 (11th Cir.
2000) (addressing claim of the denial of counsel of choice on direct appeal); United States v. Ross,
33 F.3d 1507, 1522-24 (11th Cir. 1994) (same). The multi-factor test used to analyze counsel of
choice claims considers facts we can glean from the record on direct appeal. Some elements, such
as preparedness of counsel, may be open to further exploration later; but, requiring that this issue be
raised on direct appeal merely places the burden on replacement counsel to assert a lack of
preparedness at the time of trial. We think that Kramer has procedurally defaulted his counsel of
choice claim. Further, Kramer has not established cause for and prejudice arising from his default,
or that a fundamental miscarriage of justice has occurred. Mills v. United States, 36 F.3d 1052, 1055
(11th Cir. 1994). He has not argued on appeal that his appellate counsel was ineffective for failing
to raise the counsel of choice issue on direct criminal appeal, and Kramer has not established cause.
Nor has he established prejudice, as indicated by our discussion of the merits of Kramer’s claim.
Nonetheless, we do not construe the COA as including the issue of procedural default and do not
consider this issue further because the district court specifically declined to rule on procedural
default and limited its COA to the merits of the counsel of choice claim. Compare Murray v. United
States, 145 F.3d 1249, 1250-51 (11th Cir. 1998) (stating that appellate review is limited to the issues
specified in the COA), with Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245, 1258 (11th Cir. 2002)
(involving a COA issued on the merits of a claim, but after the district court made a threshold ruling
that the claim was procedurally barred, this Court construed the COA as including the threshold issue
of procedural default as well as the merits). Rather, we review the district court’s decision on the
merits of Kramer’s claim.
4
courts.” Id.
Whether a denial of a continuance or motion to sever impinges on a
defendant’s right to a “fair and reasonable opportunity” to be represented by counsel
of choice depends on a number of factors:
(1) the length of the requested delay; (2) whether the lead counsel has
an associate who is adequately prepared to try the case; (3) whether
other continuances have been requested and granted; (4) the balanced
convenience or inconvenience to litigants, witnesses, opposing counsel
and the court; (5) whether the requested delay is for a legitimate reason,
or whether it is dilatory and contrived; [and] (6) whether there are other
unique factors present.
Gandy v. Alabama, 569 F.2d 1318, 1324 (5th Cir. 1978).4 But, “it is of no relevance
that substitute counsel has not been shown to have performed incompetently or
ineptly.” Id. at 1326.
We conclude that the district court’s decision to go on with the trial with
Bonner representing Kramer did not deny him the right to a reasonable opportunity
to be represented by counsel of choice. Some elements weigh in Kramer’s favor. For
example, Krieger became seriously and genuinely ill during trial, and nothing
suggests that Kramer had received continuances previously. But, the remainder of
the elements weigh in favor of the district court’s decision to allow the trial to go
4
This Court has adopted the case law of the former Fifth Circuit handed down as of
September 30, 1981, as its governing body of precedent. Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir. 1981).
5
forward.
First, a delay until Krieger had recuperated would have been long and open-
ended. Krieger became ill on January 29, 1990, after the trial had been going on for
more than three weeks. His condition did not improve, and he did not return to the
trial, which continued well into March 1990. Neither Bonner, Krieger, nor Kramer
provided the district court with a concrete estimate on the length of the delay.
Second, although Bonner claims that she was not ready to perform as lead
counsel, she did not plainly indicate this to the district court, which stated that she
was not being “catapulted into the situation unawares.” She only informed the district
court that Kramer had expressed “discomfort” with her. Bonner was counsel during
Kramer’s earlier, lengthy Illinois trial; and she conducted witness examination in the
Florida trail before Krieger’s incapacitation. Additionally, Bonner stated that she
organized and reviewed all the discovery in the Florida case and discussed trial
preparation and strategies with Krieger.
Third, the inconvenience to the government, witnesses, and the district court
would have been great. Many government witnesses were located outside of Florida,
and some were from Europe. Having to present these witnesses again in a new,
several month trial would have caused a great inconvenience to the government.
Further, an open-ended continuance or re-trial could have caused a substantial delay
6
to other litigants awaiting trial. See Gandy, 569 F.2d at 1323 n.9 (noting that the trial
court also weighs the rights of another defendant whose trial is delayed by the
continuance).
Finally, the district court noted as a “unique circumstance” that the majority of
the government’s witnesses had been presented before Krieger’s incapacitation.
Kramer had the benefit of Krieger’s preparation for and decision to cross-examine
(and in some instances to not cross-examine) these witnesses. Bonner stated that
Krieger was present for all of the government’s drug related witness and most of the
money laundering witnesses, and she did not expect the financial witnesses to be
harmful to Kramer.
In sum, the district court correctly concluded that Kramer was not denied a
reasonable opportunity to select counsel of his choice when it went forward with the
trial after Krieger’s incapacitation.5
AFFIRMED.
5
Kramer also claims that the district court erred by improperly relying on the supposedly
overwhelming evidence against him and by examining the competence of Bonner’s performance.
We need not decide this issue because regardless of these matters, we conclude that the district court
properly weighed the applicable elements and correctly denied Kramer’s § 2255 motion.
7