In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3002
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ICHAEL L. C AMPBELL,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 09 CR 20025—Michael P. McCuskey, Chief Judge.
A RGUED M AY 11, 2011—D ECIDED S EPTEMBER 26, 2011
Before R OVNER and H AMILTON , Circuit Judges, and
L EFKOW, District Judge.
R OVNER, Circuit Judge. Michael L. Campbell was con-
victed in May 2010 of two counts of distribution of crack
cocaine—Count 1 involving the distribution of five or
more grams of crack cocaine on April 3, 2008, and Count 2
The Honorable Joan Humphrey Lefkow, District Judge for
the Northern District of Illinois, is sitting by designation.
2 No. 10-3002
encompassing the distribution of 50 or more grams of
crack cocaine on August 25, 2008. Under the statute of
conviction, Campbell faced a statutory minimum sen-
tence of 10 years’ imprisonment on Count 1, and a statu-
tory minimum of 20 years on Count 2. The court imposed
the statutory minimum on both counts, to be served
concurrently. Seventeen days before he was sentenced,
the Fair Sentencing Act of 2010 was signed into law.
That Act, if applied to Campbell’s convictions, would
have lowered the mandatory minimum sentence ap-
plicable to Count 2, and have eliminated any mandatory
minimum sentence on Count 1.
Campbell appeals the conviction and sentence on
two grounds. First, he alleges that the district court im-
properly denied him the right to represent himself at
trial in violation of the Sixth Amendment. Because the
violation of that right is a structural error not subject
to harmless error inquiry, he argues that the alleged
violation entitles him to a new trial. See McKaskle v.
Wiggins, 465 U.S. 168, 177 (1984) (denial of right to self-
representation not amenable to “harmless error” analysis).
In addition, he argues that his sentence should be
vacated because the district court should have applied
the Fair Sentencing Act with its lower mandatory mini-
mums.
I.
The sentencing issue can be disposed of immediately,
because we have rejected precisely this argument. In
United States v. Fisher, 635 F.3d 336, 340 (7th Cir. 2011), we
No. 10-3002 3
held that the Fair Sentencing Act (the Act) does not
apply retroactively to conduct that occurred prior to the
Act. Fisher held that the relevant date for determining
whether the Act applies is the date of the criminal
conduct not the date of sentencing. Id.
Recently, the United State government reversed its
position on the matter, and it now maintains that the
law requires application of the new mandatory mini-
mum sentences to all sentencings that occur on or after
August 3, 2010, regardless of when the offense conduct
occurred. Therefore, the government and Campbell are
in agreement in this appeal. There is a split in the
circuits on the matter, and our circuit recently divided
evenly as to whether to reconsider the holding in Fisher.
See United States v. Holcomb, ___ F.3d ___, 2011 WL 3795170
(7th Cir. 2011). Because a majority did not vote to rehear
it, Fisher is controlling in this circuit unless and until
the Supreme Court decides otherwise. Accordingly,
because the criminal conduct, and indeed even the con-
viction, occurred prior to the Act, that Act is inap-
plicable to Campbell’s case and there is no basis to
revisit the district court’s sentencing determination.
II.
We turn, then, to the Sixth Amendment challenge.
Campbell maintains that his request to represent himself
was ignored by the district court, and that the failure
to accord him that right violated the Sixth Amendment.
The request was made in a letter on March 19. Because
it was made prior to trial, the timeliness of the request
4 No. 10-3002
is not an issue. See, e.g., United States v. Johnson, 223 F.3d
665, 668 (7th Cir. 2000) (a motion for self-representation
is timely if made before the jury was empaneled);
United States v. Oakey, 853 F.2d 551, 553 (7th Cir. 1988)
(request to proceed pro se must be made in a timely
manner).
A.
The March 19 letter was one of a number of letters
that Campbell sent pro se to the district court judge
detailing his concerns with his criminal case. On
November 26, 2009, Campbell sent a letter to the court
expressing concerns that his attorney, Assistant Federal
Defender John Taylor, was forcing him to go to trial too
soon, and asking for a continuance of his trial in order
to explore a possible plea agreement. The court held a
hearing on January 11 to discuss that pro se request, at
which time Taylor moved to continue the trial. At
Taylor’s request, the case was set for a status hearing on
March 18. At that hearing, Taylor informed the court
that Campbell had rejected the government’s request
for him to cooperate in return for the possibility of a
lower sentence, and that a trial date should be set. The
court then set the trial for May 10.
The next day, on March 19, Campbell again sent a letter
to the court complaining of Taylor’s representation. In that
letter, Campbell expressed concern that he was not ready
to proceed to trial, and sought a continuance.
He concluded the letter by stating:
No. 10-3002 5
Your honor I am asking that John Taylor be removed
from my case. I am requesting that you appoint an-
other lawyer to complete the process. If not I would
like to proceed pro se.
The court, in a letter dated March 29, construed Camp-
bell’s request as a motion for substitution of counsel and
indicated that it would be considered at a hearing on
April 28. Campbell sent another letter to the court on
April 11. That letter again sought a continuance to
allow him to consider a proposed plea agreement, but
did not include any request for substitution of counsel
or to proceed pro se.
The court then held the hearing on April 28, but began
by considering Campbell’s motion for a continuance.
Questioned as to the basis for his continuance request,
Campbell replied that he needed more time to review
CDs that had been supplied by the government. The court
then engaged in the following colloquy with Campbell:
THE COURT: What’s it a CD of, Ms. Coleman?
AUSA: Jail conversations.
THE COURT: Okay.
AUSA: Phone call conversations.
THE COURT: Okay. so it’s something you would
have participated in. So it wouldn’t be unknown to
you. It wouldn’t be a surprise to you, right?
MR. CAMPBELL: Well, it’s not a surprise that they
have a recording . . .
THE COURT: Okay.
6 No. 10-3002
MR. CAMPBELL: —from the, from the jail. But being
that she introduced it on the 18th and I wasn’t
afforded the time to go over the full CD, which she’s
saying that it’s incriminating statements on there,
I want to be able to go over the full CD. That way
I can get my, you know, my witnesses together and—
THE COURT: Well, you’re not going to try the case
yourself, are you?
MR. CAMPBELL: Oh, no.
THE COURT: Okay.
MR. CAMPBELL: But I just want to be able to, to
listen to the CD and see who’s all on the CD. That
way, I can inform the people that’s on the CD of
the situation. That way I can have these witnesses
subpoenaed on my behalf at trial.
THE COURT: Okay. Anything further?
MR. CAMPBELL: No.
The government seizes upon that colloquy as evi-
dence that Campbell abandoned his request to represent
himself, and the district court apparently was of the
same mind. At the close of the hearing, the court engaged
in the following exchange with Taylor regarding Camp-
bell’s request to represent himself:
THE COURT: Anything further, Mr. Taylor?
MR. TAYLOR: Your Honor, in an exercise of abundant
caution and most importantly to protect my client,
as I understand the record, based on the fact my
client told Your Honor he does not wish to represent
No. 10-3002 7
himself at trial, that that pro se motion has been
withdrawn. And I just think—
THE COURT: Yeah. Well he said he didn’t want to
proceed to represent himself, so I didn’t go into a
colloquy.
MR. TAYLOR: Right.
THE COURT: So I would assume it’s moot; and, of
course, the motion to continue has been denied. So
absolutely you continue to represent Michael Camp-
bell, and we will have Mr. Campbell back here in
appropriate civil - - appropriate civilian clothing at
9:00 on Monday, May 10th, to proceed to jury trial
that week.
Campbell’s argument on appeal is that he explicitly
requested to represent himself if the court was unwilling
to appoint another attorney to represent him, and
that the court never engaged in any colloquy deter-
mining whether that decision to proceed pro se was
made knowingly and voluntarily. Campbell asserts that
in ignoring the request, the court denied him that right
to represent himself at trial. Campbell further argues
that in the course of denying his motion for a continuance
at the April 28 hearing, the court made clear to
Mr. Campbell that he had no right to be heard personally
because he was represented by counsel:
THE COURT: Very good. Mr. Campbell, I’ve heard
your pro se motion [to continue], which most
federal judges would have struck from the record as
soon as it was filed because you’re represented by
8 No. 10-3002
counsel. However, I was a criminal defense lawyer,
not a prosecutor; and, therefore, I have afforded
you the opportunity to be heard, which you had
absolutely no right to be heard under federal law,
but I gave you that opportunity because I was inter-
ested in the nature of your letter. But the nature
of your letter is absolutely no reason for a continu-
ance whatsoever in this case, and it’s denied for all
the reasons that we’ve stated this morning.
B.
It is well-settled that the Sixth Amendment protects
a person’s right to represent herself, as well as providing
the right to the representation of counsel. Indiana v. Ed-
wards, 554 U.S. 164, 170 (2008); Faretta v. California, 422
U.S. 806, 807 (2008); United States v. Oakey, 853 F.2d 551, 553
(7th Cir. 1988). Those rights are mutually exclusive, in
that in order to assert the right to represent oneself, the
defendant must waive the right to counsel. United States
v. Stubbs, 281 F.3d 109, 116 (3d Cir. 2002); Oakey, 853 F.2d
at 553; Tuitt v. Fair, 822 F.2d 166, 174 (1st Cir. 1987). Be-
cause the assistance of counsel is a critical component of
an effective defense, courts will indulge every rea-
sonable presumption against the waiver of counsel.
United States v. Miles, 572 F.3d 832, 836-37 (10th Cir. 2009);
Buhl v. Cooksey, 233 F.3d 783, 790 (3d Cir. 2000). Any
waiver of that right to counsel must be unequivocal.
Oakey, 853 F.2d at 553; Miles, 572 F.3d at 836.
The requirement that the demand to proceed pro se be
unequivocal has a number of purposes. First, it ensures
No. 10-3002 9
that a defendant will not be deprived of counsel merely
based on “ ‘occasional musings on the benefits of self-
representation.’ ” Buhl, 233 F.3d at 792, quoting United
States v. Frazier-El, 204 F.3d 553, 558 (4th Cir. 2000).
Because the two rights are in conflict “the nature of the
two rights make it reasonable to favor the right to
counsel which, if denied, leaves the average defendant
helpless.” Tuitt v. Fair, 822 F.2d 166, 174 (1st Cir. 1987). In
addition, the requirement that a waiver of counsel be
unequivocal is necessary lest a defendant attempt to
“play one constitutional right against another,” Id. At
175. An ambiguous waiver could provide a convicted
criminal with a tool to overturn a verdict after trial, by
asserting that his or her Sixth Amendment rights had
been violated regardless of how the court ruled
on the waiver. Id.; Miles, 572 F.3d at 836. To avoid that
situation, courts have required that “[a]n ‘unequivocal’
demand to proceed pro se should be, at the very least,
sufficiently clear that if it is granted the defendant
should not be able to turn about and urge that he was
improperly denied counsel. . . .” Tuitt, 822 F.2d at 175;
see also Miles, 572 F.3d at 836.
Applying those principles to the facts before us, it
is apparent that Campbell was not denied his Sixth
Amendment right to represent himself. His initial
request in the March 19 letter was unequivocal
though conditional. He requested that Taylor be
removed from his case, and requested the appointment
of another lawyer. He then stated that if another
lawyer would not be appointed, he would like to proceed
pro se. That is sufficient to at least raise the issue of self-
10 No. 10-3002
representation. At that point, the district court should
have engaged in a colloquy to address that request. See
United States v. Todd, 424 F.3d 525, 531 (7th Cir. 2005). The
questioning that did occur regarding the matter was
insufficient to elicit the relevant information. The only
question regarding whether Campbell indeed desired to
proceed without the assistance of counsel was a leading
question asked by the judge in the context of a hearing
regarding a motion to continue the case. In determining
whether Campbell needed additional time to review
evidence provided by the government, the court inter-
rupted the defendant as he explained his need for time
and queried “Well, you’re not going to try the case
yourself are you?” Campbell responded in the negative
to that leading question, and continued with his explana-
tion. A leading question such as that one—raised in
the context of an unrelated issue— is an inherently unreli-
able indicator of Campbell’s true state of mind. If that is
all that we had before us, Campbell would have a
strong argument that he was denied his Sixth Amend-
ment right to represent himself.
But the determination as to whether a defendant
desires to represent himself is not a static one. We do not
merely consider the time of the initial request in deter-
mining whether there is an unequivocal desire to
represent himself. Instead, we must look to Campbell’s
subsequent conduct as well in the course of the proceed-
ings. See McKaskle v. Wiggins, 465 U.S. 168, 182-83
(1984); Johnson, 223 F.3d at 668; Brown v. Wainwright, 665
F.2d 607, 610-11 (5th Cir. 1982). As we have noted, the
right to self-representation can be waived expressly or
No. 10-3002 11
it can be waived by implication where the defendant’s
conduct establishes that he acquiesced in the use of
counsel and the relinquishment of his right to self-repre-
sentation. Johnson, 223 F.3d at 668-69. It is here that it
becomes apparent that Campbell did not in fact seek
to waive the assistance of counsel and assert his right
to self-representation.
As was mentioned, Campbell responded to the court’s
question at the hearing by indicating that he did not
intend to represent himself. Although the context of the
question would cause us to question the validity of the
response, at a minimum it casts some doubt as to
whether Campbell sought to waive counsel. In a discus-
sion with Campbell’s counsel at the close of the hearing,
the court made it clear that it interpreted Campbell’s
response as indicating that he did not want to represent
himself. Although present during that discussion, Camp-
bell said nothing to rebut that characterization. In
fact, Campbell never raised the matter again. The initial
answer, followed by the silence and the subsequent
acceptance of representation throughout the trial,
indicate that Campbell in fact desired to retain counsel
despite his earlier misgivings about Taylor. There is
no unequivocal waiver of the right to counsel or unequivo-
cal demand to proceed pro se, and therefore no
Sixth Amendment violation of the right to self-representa-
tion. Accordingly, the decision of the district court is
A FFIRMED.
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