United States v. Casey Hunter
Opinion
NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604
Submitted October 18, 2017 Decided November 20, 2017
Before
JOEL M. FLAUM, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 15‐3700
UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff‐Appellee, Court for the Central District of Illinois.
v. No. 11–CR–40055–001
CASEY HUNTER, Michael M. Mihm, Defendant‐Appellant. Judge.
O R D E R
Casey Hunter fled from a traffic stop with a gun, and a police officer shot him when he saw Hunter turning to fire at him. After a two‐day bench trial, Hunter was found guilty of possessing a firearm as a felon, see 18 U.S.C. § 922(g)(1), and sentenced as an armed career criminal to 260 months’ imprisonment. He filed a notice of appeal, but his appointed counsel asserts that the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738 (1967). Hunter filed a series of responses to counsel’s motion. See CIR. R. 51(b). Because the analysis in counsel’s brief is facially adequate, we limit our review to the subjects he discusses and those Hunter raises. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014). We consider Hunter’s arguments, however, only to the extent we can decipher them.
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First, counsel and Hunter consider whether Hunter could argue that the district judge denied Hunter his counsel of choice when he permitted Hunter’s first appointed attorney to withdraw because of a conflict of interest. Before trial, the government informed Hunter’s counsel, George Taseff, that it planned to call as a witness a former client of Taseff’s named Darrius Martin; this prompted Taseff to move to withdraw. The judge agreed that the possibility of Taseff cross‐examining his former client created a direct and irreconcilable conflict of interest and granted the motion. See Wheat v. United States, 486 U.S. 153, 164 (1988). But in the end Taseff’s former client did not testify. Counsel correctly explains that Hunter had no right to his counsel of choice because he required a court‐appointed lawyer. See United States v. Gonzalez‐Lopez, 548 U.S. 140, 151 (2006); United States v. Bender, 539 F.3d 449, 454–55 (7th Cir. 2008). Therefore, any argument premised on this right would be frivolous.
Hunter, however, insists that the conflict of interest is “suspicious,” that the government never intended to call Martin, and that it listed him as a witness just to force Taseff to withdraw. Nothing in the record supports that argument. The prosecutor did not seek Martin out; he became aware of Martin as a potential witness only because Hunter wrote a letter to the judge complaining that Martin was informing on him. Further, the government represented that it had every intention of calling Martin to testify. But a witness list is not a binding contract; the government was free to cut off its presentation of evidence when it believed it had met its burden. Finally, at the hearing about Taseff’s withdrawal, Hunter said he understood the circumstances and moved to continue pro se; he cannot be said to have made a timely objection to the withdrawal.
Counsel next concludes that it would be frivolous to argue that Hunter was not competent to represent himself from the time Taseff withdrew up until the second day of trial when his second appointed attorney took over representation. Despite having been advised against it, Hunter insisted on proceeding pro se– a choice that the district judge had to honor regardless of its wisdom, see Faretta v. California, 422 U.S. 806, 834–35 (1975). Though a district judge may override a defendant’s decision to represent himself if that defendant suffers from “severe” mental illness, see United States v. Berry, 565 F.3d 385, 391 (7th Cir. 2009), the court found that was not the case here. True, concerns about Hunter’s mental health—stemming from his apparent paranoia, his seeming inability to cease writing sometimes‐incoherent letters to the judge after being ordered to stop, and what counsel believed to be odd communications with him, among other things—prompted his second appointed attorney to move for a competence hearing during and after the trial. The resulting psychological evaluation established that Hunter displayed “anxiety” and “antisocial behavior” but the court found “nothing, either alone or together, rising to the level that would constitute incompetence to stand trial.” The doctor testified at the
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hearing that, despite his symptoms, Hunter had an “adequate factual understanding” of legal processes and possessed the capacity and willingness to interact with counsel. The district judge also relied on his own observations of Hunter before and during trial in concluding that Hunter was both competent to stand trial and competent to represent himself, although the judge recognized the possibility that “someone might be competent to stand trial but not competent to effectively represent themselves.” In Indiana v. Edwards, 554 U.S. 164 (2008) the Supreme Court held that the Constitution permits states to insist upon representation by counsel for those competent enough to stand trial but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves. Id. at 178. In Berry, we noted that the same principle applies in federal trials, that is, a trial court may override a defendant’s decision to proceed pro se if the defendant suffers from mental illness severe enough to render the defendant incompetent to represent himself. 565 F.3d at 392. But the district court held a hearing and concluded as a factual matter that Hunter was not severely mentally ill. Arguing that the court abused its discretion in allowing Hunter to represent himself would be frivolous because, a defendant without a diagnosed severe mental illness generally must be allowed to proceed pro se. Berry, 565 F.3d at 391.
Counsel finally considers if Hunter could challenge his sentence but concludes that argument would be frivolous. We agree. The judge correctly found that Hunter had at least three predicate convictions under the Armed Career Criminal Act, which meant that he was subject to a statutory‐minimum sentence of 180 months’ imprisonment. See 18 U.S.C. § 924(e)(1). The district judge then calculated a guidelines range of 324 to 405 months’ imprisonment and considered the factors listed in 18 U.S.C. § 3553(a). Ultimately, the judge imposed a below‐guidelines sentence of 260 months. He made no procedural errors in determining the sentence, see United States v. Lyons, 733 F.3d 777, 784–85 (7th Cir. 2013), and it was substantively reasonable, see Rita v. United States, 551 U.S. 338, 347 (2007); United States v. Rice, 520 F.3d 811, 821–22 (7th Cir. 2008), so any challenge to Hunter’s sentence would be frivolous.
Hunter attempts to raise other potential appellate arguments in his piecemeal Rule 51(b) responses, and we do our best to understand them. First, he appears to reprise a frivolous argument from his post‐trial motions that his right to a speedy trial was violated because three years (during some of which there was an interlocutory appeal in this court) elapsed between his indictment and trial. See 18 U.S.C. § 3161(c)(1). The district judge concluded that Hunter had waived this issue because he did not move to dismiss the indictment before trial on the grounds of a speedy‐trial violation. See id. § 3162(a)(2) (“Failure of the defendant to move for dismissal prior to trial . . . shall constitute a waiver of the right to dismissal under this section.”). Although we see that
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