United States v. Lott

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 30, 2002
• Docket: 00-6141
• Status: Published

Opinion

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, v. No. 00-6141 GARY ALLEN LOTT,

Defendant - Appellant.

Plaintiff - Appellee,

v. No. 00-6200 JOHNNY MARTON LOTT, aka Johnny Martin Lott,

ORDER Filed November 5, 2002

Before EBEL, HENRY, and BRISCOE, Circuit Judges.

This matter is before the court on appellant’s petition for rehearing in

00-6200 filed on August 23, 2002. The petition for rehearing is granted.

Therefore, the court’s opinion in 00-6141 and 00-6200, filed July 30, 2002, is vacated and a revised opinion addressing the changes in Sections VI and VII is

attached. The mandate issued in case 00-6141 is recalled. The District Court

Clerk shall return the recalled mandate forthwith.

Entered for the Court PATRICK FISHER, Clerk of Court

by: Deputy Clerk

-2- F I L E D United States Court of Appeals Tenth Circuit PUBLISH NOV 5 2002 UNITED STATES COURT OF APPEALS PATRICK FISHER Clerk TENTH CIRCUIT

Plaintiff - Appellee, v. No. 00-6141 * GARY ALLEN LOTT,

Defendant - Appellant. _______________________________

v. No. 00-6200

JOHNNY MARTON LOTT, aka Johnny Martin Lott,

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 99-CR-30-T)

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case therefore is ordered submitted without oral argument. No. 00-6141, Submitted on the Briefs:

J. David Ogle, Martin Law Office, Oklahoma City, Oklahoma, for Defendant- Appellant Gary Allen Lott.

Daniel G. Webber, Jr., United States Attorney, and Frank Michael Ringer, Assistant United States Attorney, Oklahoma City, Oklahoma, for Plaintiff- Appellee.

No. 00-6200:

Howard A. Pincus, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, with him on the brief), Denver, Colorado, for Defendant- Appellant Johnny Lott.

Frank Michael Ringer, Assistant United States Attorney (Daniel G. Webber, United States Attorney, with him on the briefs), Oklahoma City, Oklahoma, for Plaintiff-Appellee.

EBEL, Circuit Judge.

Gary Lott and Johnny Lott were indicted 1 and convicted by a jury of

various counts in connection with a conspiracy to manufacture and distribute of

1 Gary’s and Johnny’s brother, David Ray Lott, and Gary’s nephew, Greg Allen Lott, were also indicted as co-defendants. Greg Allen Lott entered a guilty plea prior to trial, and co-defendant David Ray Lott was acquitted at trial on the two counts charged against him.

-2- methamphetamine. These co-defendants at trial now bring separate appeals

alleging various errors by the district court, which we address in this single

opinion. Specifically, they both claim that their sentences run afoul of Apprendi

v. New Jersey, 530 U.S. 466 (2000). Gary Lott also contests the district court’s

failure to suppress the testimony of certain government witnesses and its denial of

his motion for a judgment of acquittal on a firearm possession charge. Johnny

Lott challenges the district court’s admission of exhibits that he claims are

hearsay and its failure to hold a hearing on his motion for substitute counsel.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district court

in all regards except for the district court’s ruling denying Johnny Lott an

evidentiary hearing on his claim of a total breakdown of communications with his

counsel. As to that claim, we REVERSE and REMAND.

I. Background

This conspiracy case involves a methamphetamine manufacturing and

distribution operation operated out of three residences in the Oklahoma City area:

2418 Southwest 24th Street, 4725 South Triple X Road, and 201 Hawk Drive.

Johnny Lott allegedly used the residence of Jeff Wright, the 24th Street house, in

connection with his distribution of methamphetamine. In October and November

of 1998, an Oklahoma City Police Department (OCPD) paid informant, Judy

-3- Jackson, made controlled buys from Johnny Lott, which an OCPD officer

observed in an undercover capacity. David Arnold also obtained

methamphetamine from Johnny Lott. At trial, Judy Jackson, Jeff Wright, and

David Arnold all testified about the defendants’ activities in connection with the

methamphetamine manufacturing and distribution operation. Both Judy Jackson

and Jeff Wright entered into plea agreements with the government in which they

were promised leniency for their testimony in this case. Ms. Jackson also

received $3,450 from the FBI for her cooperation in the case.

On January 9, 1999, a search of the Triple X Road and Hawk Drive

residences revealed clandestine methamphetamine labs. A United States Postal

Service form for the address of 201 Hawk Drive also was found in a bedroom at

the Hawk Drive residence. The form, entitled “Rural Customer Delivery

Instructions,” contained an instruction to “enter names of people who may receive

mail at your address.” The names Johnny Lott, David Lott, and Greg Lott were

hand-written on the form. At trial, the government sought to introduce the form

as Exhibit 68. It also presented evidence at trial connecting Gary Lott to both of

these properties, including several utility bills in his name and a rental agreement

for the Triple X Road property.

On January 21, 1999, OCPD Officer Danny Fitzwilliam recognized a

yellow wrecker, which he associated with the January 9th search of the Triple X

-4- Road and Hawk Drive residences, pulling out of the parking lot of the Chieftan

Motel. The officer pulled into the parking lot and observed Gary Lott walking

from the motel to a red Camaro parked in front of the room. He then saw Gary

get “in the driver’s side door and lean[] over the driver’s seat inside the vehicle.”

The officer observed Gary Lott look up, get out of the car, close the door, and

begin walking away from the Camaro and the hotel room. The officer proceeded

to arrest Gary Lott and entered the room that he believed Gary Lott had been

exiting. In the room he observed an older revolver and a police scanner, and he

noticed a strong smell associated with meth labs. He encountered Nicole Hatcher,

Gary Lott’s girlfriend, at the doorway, and they spoke outside by the Camaro.

The officer then looked down and observed a nine-millimeter Sig-Sauer sitting on

the driver’s seat of the Camaro that Gary Lott had previously exited. He

confiscated the gun and found various chemicals involved in the manufacturing of

methamphetamine inside the Camaro, as well as a heating element, various

glassware, tubing, and rubber stoppers. 2 The officer also found in the back of the

Camaro an unlocked safe and a telephone bill in Gary Lott’s name.

A search of the motel room also revealed evidence of materials associated

with methamphetamine manufacturing, including coffee filters, used tubing,

2 Officer Fitzwilliam’s testimony indicates that these items were found on the “passenger’s side floorboard,” “in the back,” and in “the rear” of the Camaro.

-5- plastic baggies, and white powder residue. In addition to these materials, the

police found a vehicle registration receipt indicating that a pickup truck was

registered to “Gary and/or John Lott” at the Triple X Road address. The

government sought to enter this receipt at trial as Exhibit 21.

On February 17, 1999, a federal grand jury delivered a multi-count

indictment, charging Gary Lott on the following counts: Count 1 alleged that the

co-defendants conspired to manufacture and distribute methamphetamine in

violation of 21 U.S.C. § 841 (a)(1), incorporating by reference counts 2-12,

resulting in a total of 127.8 grams of mixture of methamphetamine. Counts 6, 7,

and 8 charged Gary Lott with maintaining a residence for the purpose of

manufacturing methamphetamine in violation of 21 U.S.C. § 856 (a)(1). Count 10

charged him with possession of listed chemicals with intent to manufacture

methamphetamine in violation of 21 U.S.C. § 841(d)(1). Count 11 charged him

with attempting to manufacture methamphetamine in violation of 21 U.S.C. § 846,

but that count did not state a quantity. Finally, Count 12 charged him with

knowingly carrying and possessing a firearm, the 9 mm Sig-Sauer found in the

Camaro, during and in relation to and in furtherance of the drug trafficking

offense of attempting to manufacture methamphetamine, in violation of 18 U.S.C.

§ 924(c)(1). After a four day trial, ending on July 30 1999, the jury found Gary

-6- Lott guilty on all counts. As with most pre-Apprendi cases, the jury was

instructed that it did not have to find drug quantity beyond a reasonable doubt.

Gary Lott filed objections to the Presentence Report (PSR), claiming that it

failed “to define or articulate with specificity the source of the information

regarding the drug quantities and purity relied upon in making the drug quantity

determination.” On April 7, 2000, the district court adopted the PSR’s

recommended terms of imprisonment and sentenced Gary Lott to life terms for

Counts 1 and 11, to run concurrently; 240 months on each of Counts 6, 7, 8, and

10, also to run concurrently to his life sentence; and 60 months on Count 12,

which was not to run concurrently with any other term of imprisonment.

The grand jury also indicted Johnny Lott on Count 1 (conspiracy), and

Counts 2, 3, and 4 charged him with distributing the following amounts of a

mixture or substance containing methamphetamine: 28.3 grams (Count 2), 29.6

grams (Count 3), and 55.8 grams (Count 4), all in violation of 21 U.S.C.

§ 841(a)(1). Count 9 alleged that Johnny Lott maintained the 24th Street premises

for the purpose of distributing a mixture or substance containing

methamphetamine in violation of 21 U.S.C. § 856 (a)(1). The jury, which also

was instructed that it did not have to find drug quantity beyond a reasonable

doubt, found him guilty of all counts charged.

-7- Johnny Lott also filed objections to the PSR, contesting the accuracy of the

report’s methamphetamine calculation and claiming that the government had

failed to show by a preponderance of the evidence the drug quantities attributed to

him. On June 13, 2000, the district court reduced the offense level stated in the

PSR by two levels and sentenced Johnny Lott to thirty year sentences on each of

Counts 1, 2, 3, and 4, and to a twenty year sentence on Count 9. All of his

sentences were to run concurrently with each other.

After conviction but prior to his sentencing, Johnny Lott filed a total of five

pro se motions with the district court between October 1999 and March 2000,

claiming, in large part, that he was dissatisfied with his counsel’s representation

of him at trial. In his second and third motions, Johnny Lott alleged

communication problems with his attorney, stating that his counsel “failed to

communicate or interview defendant either before or after trial,” that “defendant

has written to counsel to no avail,” and that Johnny Lott had not “been able to

establish any sort of contact” with his attorney. (Id.) Lott asked the court for

“remedy and protection.” The district court denied the second and third motions

in an order stating that “even if [Lott’s criticisms are] deemed a request for new

counsel, the defendant has not made the required showing.” The district court

also expressed concerns about appointing new counsel “at this stage of the

proceedings” due to the complex nature of sentencing in a drug conspiracy case

-8- and the factual showings that were “uniquely within present counsel’s knowledge

of the evidence and material circumstances.”

Johnny Lott’s fourth motion stated that this counsel “failed to ever contact

[him] prior to jury trial” except to inform him of court dates and that he no longer

wanted his attorney to be involved in his case. The district court characterized

Johnny Lott’s letter as “complaining of insufficient contacts by counsel” and as

arguing that his counsel failed to defend him properly. The court denied the

motion, noting that defendant had not requested new counsel or elected to

represent himself pro se. “If defendant wishes to pursue his complaint with

specific requests and particularized complaints so that the court will have a basis

for consideration,” the district court’s order read, “he may do so.”

Johnny Lott filed a fifth motion requesting “effective counsel to be

appointed” for the remainder of the post-conviction proceedings, due to previous

counsel’s “wrongfull [sic] defense and failure to confer or advise the defendant or

allow the defendant any input.” The district court denied the motion, stating that

defendant had sent the court correspondence “containing general complaints about

his attorney” and “conclusory statements about his counsel’s inadequacies.” The

court-appointed counsel of which Johnny Lott complained continued to represent

him at the sentencing proceedings on June 9, 2000.

-9- On appeal, both Gary and Johnny Lott raise Apprendi challenges to their

sentences on the drug counts, claiming that their sentences exceed the statutory

maximum, and therefore, that it was error for the jury not to be instructed that it

had to find drug quantity beyond a reasonable doubt, and that Count 11 should

have stated drug quantity as an element of the offense. They urge that because of

these errors, we should vacate and remand their sentences.

Additionally, Gary claims that the district court erred in failing to suppress

the testimony of certain government witnesses, such as Judy Jackson, who

received benefit for their testimony. He also argues that the district court erred in

not sustaining his motion for acquittal on Count 12 for possession of a firearm.

Johnny Lott claims that the district court erred in admitting exhibit 21

(truck registration receipt) and 68 (postal form), arguing on appeal that they were

hearsay. He also contends that the district court’s failure to conduct an inquiry

into his complaints about counsel prior to sentencing require us to remand his

case for resentencing. We address each of these claims in turn.

II. Apprendi Claims

A.

After Gary and Johnny Lott’s trial and sentencing, the Supreme Court

decided Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that “[o]ther

- 10 - than the fact of a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.” Id. at 490. We apply Apprendi to cases pending on

direct review. See Griffith v. Kentucky, 479 U.S. 314, 328 (1987). Guided by

the rationale of Apprendi, we have held that the quantity of drugs involved for an

offense under 21 U.S.C. § 841 3 is an “essential element” that must be charged in

an indictment, submitted to a jury, and proven beyond a reasonable doubt if that

fact exposes the defendant to a heightened maximum sentence under the

enhancement provisions of § 841 (b)(1)(A) or (b)(1)(B). See United States v.

Jones, 235 F.3d 1231, 1236-37 (10th Cir. 2000). On appeal, Gary Lott contends

that his life sentences for Counts 1 and 11, as sentenced under § 841 (b)(1)(A),

3 This drug statute, 21 U.S.C. § 841(a)(1), makes it unlawful for a person knowingly or intentionally “to manufacture, distribute, or dispense or possess with intent to manufacture, distribute, or dispense, a controlled substance.” Section 841(b) delineates minimum and maximum penalties depending on the quantities of drugs involved. Subsections (b)(1)(A) and (B) are referred to as “enhancement” provisions, because they allow for a greater maximum sentence than the “catch-all” subsection (b)(1)(C). See United States v. Jones, 235 F.3d 1231, 1236 (10th Cir. 2000) (stating that subparagraphs (A) and (B) provide for “enhanced sentences”). Specifically, § 841(b)(1)(A)(viii) states that a violation involving 500 grams or more of a mixture containing methamphetamine shall result in a term of imprisonment not less than 10 years or more than life. Similarly, § 841(b)(1)(B)(viii) states the minimum sentence of 5 years and a maximum of 40 years for violations involving 50 grams or more of a mixture containing methamphetamine. Subsection 841(b)(1)(C) states that in the case “of a controlled substance in schedule I or II . . . , except as provided in subparagraphs (A), (B), and (D),” the term of imprisonment shall not exceed 20 years.

- 11 - run afoul of Apprendi because the indictment failed to state a quantity of drugs in

Count 11, and because the jury was not instructed that it had to find drug quantity

beyond a reasonable doubt for either count. Similarly, Johnny Lott challenges on

Apprendi grounds his thirty year sentences on Counts 1, 2, 3, and 4, all under §

841 (b)(1)(B), because the jury was not instructed that it had to find drug quantity

beyond a reasonable doubt.

B.

We must first determine what standard of review to apply to the various

alleged errors made by the district court in imposing the defendants’ sentences.

In his brief, Gary Lott concedes that he “did not make Apprendi type objections,”

which he defines as objecting to being sentenced above the statutory maximum

for drug quantities when the drug quantities were neither alleged in the indictment

nor required to be found beyond a reasonable doubt by the jury. We consider in

turn each of the Apprendi errors alleged on appeal—the failure of the indictment

to state a quantity of drugs and the failure properly to instruct the jury that it must

find drug quantity beyond a reasonable doubt.

In United States v. Cotton, 122 S.Ct. 1781 (2002), the Supreme Court

recently analyzed an alleged Apprendi error based on an indictment’s omission of

drug quantity. In that case, as here in Count 11, the “indictment did not allege

any of the threshold levels of drug quantity that [could] lead to enhanced

- 12 - sentences.” Id. at 1783. The defendants, nevertheless, were sentenced under

§ 841(b)(1)(A), and received terms of imprisonment for the indictment in excess

of the twenty year maximum provided for in § 841(b)(1)(C). See id. at 1783-84.

Below, a divided panel of the Fourth Circuit held that although the defendants

had not raised their Apprendi argument before the district court, the indictment’s

failure to include an essential element of the offense was jurisdictional. United

States v. Cotton, 261 F.3d 397, 405 (4th Cir. 2001). Therefore, the error required

the court to vacate the sentences and remand because such an error “seriously

affects the fairness, integrity or public reputation of judicial proceedings.” Id. at

406.

A unanimous Supreme Court reversed, holding that such an omission from

an indictment is not jurisdictional, and proceeded to analyze the indictment’s

defect under the plain-error test of Federal Rule of Criminal Procedure 52(b)

(“Fed.R. Crim. P.”). Cotton, 122 S.Ct. at 1785. Following the Court’s example,

we will apply that plain error analysis, as defined by the Court in United States v.

Olano, 507 U.S. 725, 732 (1993). 4

4 In United States v. Prentiss, 256 F.3d 971 (10th Cir. 2001) (en banc), we held that the failure of an indictment to state an essential element was subject to harmless error review. Id. at 981. Prentiss did not deal with an Apprendi challenge to a defective indictment, and some of our post-Prentiss cases, in the absence of a constitutional objection below, have continued to apply a plain error analysis to indictments that failed to state a quantity of drugs. See United States (continued...)

- 13 - With respect to the unpreserved error of the jury’s failure to find drug

quantity beyond a reasonable doubt, we also believe that our review should be for

plain error under Fed.R. Crim. P. 52 (b), as opposed to the “harmless beyond a

reasonable doubt” standard under Chapman v. California, 386 U.S. 18, 24 (1967),

for preserved constitutional error. See United States v. Guevara, 277 F.3d 111,

123 (2d Cir. 2001); United States v. Fields, 251 F.3d 1041, 1044-45 (D.C. Cir.

2001); United States v. Candelario, 240 F.3d 1300, 1303 (11th Cir.), cert. denied,

533 U.S. 922 (2001); United States v. Terry, 240 F.3d 65, 72-73 (1st Cir.), cert.

denied, 532 U.S. 1023 (2001). Although Gary Lott notes that he objected to the

calculation of drug quantity at sentencing, 5 this objection failed to present the

constitutional claim now presented on appeal. As the court explained in

4 (...continued) v. Lujan, 268 F.3d 965, 967 (10th Cir. 2001); United States v. Price, 265 F.3d 1097, 1107-08 (10th Cir. 2001), cert. denied, 122 S. Ct. 2299 (2002). We need not comment on the application of Prentiss to non-Apprendi claims in the wake of Cotton, as we are guided by the Court’s recent instruction that we review Apprendi challenges to an indictment’s omission of drug quantity for plain error where no constitutional objection was raised below. See Cotton, 122 S.Ct. at 1785. 5 Specifically, Gary Lott claimed in his objections to the PSR that it “fail[ed] to define or articulate with specificity the source of information regarding the drug quantities and purity relied upon in making the drug quantity calculations.” Johnny Lott objected to “the accuracy of the computations of methamphetamine” for which he was found accountable in the Presentence Report (PSR). In fact, Johnny Lott’s objection requested only that the government “prove by a preponderance of the evidence” that he distributed the amounts of methamphetamine listed in the PSR. Clearly these objections did not present the constitutional argument presented on appeal.

- 14 - Candelario, a defendant may raise a constitutional objection in Apprendi cases by

invoking that decision or Jones v. United States, 526 U.S. 227, 243 n. 6 (1999), or

by claiming that

the issue of drug quantity should go to the jury, . . . that an element of the offense was not proved, that the judge cannot determine quantity, or that quantity must be proved beyond a reasonable doubt (and not by a preponderance of the evidence). However, a defendant’s objection to the quantity of drugs that the Government attributes to him is not, on its own, a constitutional objection. Such an objection is properly characterized as either an evidentiary objection or a sufficiency of the evidence objection.

240 F.3d at 1304 (internal quotation marks and citations omitted). Compare

Guevara, 277 F.3d at 116, 123-25 (reviewing Apprendi claims for plain error

despite defendant’s objections at sentencing to drug quantity found in PSR);

Fields, 251 F.3d at 1044-45 (finding that defendants’ objection based “only on the

grounds that calculations [of drug quantity] were speculative” merited review for

plain error only); United States v. Pease, 240 F.3d 938, 943-44 (11th Cir.)

(reviewing Apprendi claim under plain error even though “the amount of cocaine

involved in the offense was disputed at sentencing”), cert. denied, 122 S.Ct. 381

(2001); Terry, 240 F.3d at 72-73 (finding that defendant’s objections to the

amount of drugs “did not address the failure to [submit the issue of drug quantity]

to the jury for proof beyond a reasonable doubt,” thereby meriting only plain error

review); and United States v. Swatzie, 228 F.3d 1278, 1280-81 (11th Cir. 2000)

(same), cert. denied, 533 U.S. 953 (2001), with United States v. Garcia-Guizar,

- 15 - 234 F.3d 483, 488 (9th Cir. 2000) (finding defendant’s objection based on Jones

that the issue of drug quantity must be presented to the jury to be a constitutional

objection that preserved error), cert. denied, 532 U.S. 984 (2001); United States v.

Nealy, 232 F.3d 825, 828-29 (11th Cir. 2000) (same), cert. denied, 122 S.Ct. 552

(2001); and United States v. Doggett, 230 F.3d 160, 162-63, 165 (5th Cir. 2000)

(same), cert. denied, 121 S.Ct. 1152 (2001). But see United States v. Humphrey,

287 F.3d 422, 445-46 (6th Cir. 2002) (finding itself bound by circuit precedent

that an objection to the quantity of drugs is sufficient to preserve an Apprendi

error but acknowledging that “several” of its sister circuits “have held that factual

challenges to the calculation of drug amounts in the district court, by itself, may

be insufficient to preserve the Apprendi issue on appeal”). 6

C.

Turning to the facts of this case, we proceed to evaluate whether either the

alleged indictment error in Count 11 or jury instruction errors on all counts

6 This standard of reviewing for plain error in Apprendi cases when no constitutional objection was made below is analogous to our cases in which we review hearsay objections. In that context, an appellant must lodge an objection premised on a violation of his Sixth Amendment right to confrontation to preserve the issue for constitutional harmless error review. “Where a Confrontation Clause objection is not explicitly made below we will not address the constitutional issue in the absence of a conclusion that it was plain error for the district court to fail to raise the constitutional issue sua sponte.” United States v. LaHue, 261 F.3d 993, 1009 (10th Cir. 2001) (alteration and internal quotations marks omitted); United States v. Perez, 989 F.2d 1574, 1582 (10th Cir. 1993) (en banc).

- 16 - constitute plain error. Under a plain error review, “[r]eversal is only warranted if

there is: (1) an error; (2) that is plain or obvious; (3) affects substantial rights;

and (4) ‘seriously affect[s] the fairness, integrity[,] or public reputation of judicial

proceedings.’” United States v. Cernobyl, 255 F.3d 1215, 1218 (10th Cir. 2001)

(quoting United States v. Hishaw, 235 F.3d 565, 574 (10th Cir. 2000) (quoting

United States v. Olano, 507 U.S. 725, 732 (1993)), cert. denied, 533 U.S. 908

(2001)). The government concedes, as it must, that imposing sentences in excess

of twenty years on counts where drug quantity was omitted from the indictment

(Count 11) or where the jury was not instructed that it must find drug quantity

beyond a reasonable doubt (Counts 1, 2, 3, 4, and 11) constitutes “error” that is

“plain.” See United States v. Price, 265 F.3d 1097, 1108 (10th Cir. 2001)

(concluding that failure to sentence under § 841(b)(1)(C) where indictment

failed to state a quantity and jury not instructed to find quantity beyond a

reasonable doubt satisfied first two prongs of plain error test), cert. denied, 122

S.Ct. 2299 (2002); Cernobyl, 255 F.3d at 1220 (same); United States v. Keeling,

235 F.3d 533, 538-39 (10th Cir. 2000) (same), cert. denied, 533 U.S. 940 (2001).

Accordingly, we turn our attention to the third prong–whether the errors affected

defendants’ substantial rights.

For an error to have affected substantial rights, “in most cases . . . means

that the error must have been prejudicial: It must have affected the outcome of the

- 17 - district court proceedings.” Olano, 507 U.S. at 734. In this case, neither Gary

nor Johnny Lott can show that the Apprendi errors affected their substantial rights

because their total length of imprisonment would not have been shorter even if

they were properly sentenced under § 841 (b)(1)(C), due to the mandatory

“stacking” requirement of § 5G1.2(d) of the United States Sentencing Guidelines

(Guidelines). 7

Section 5G1.2(d) of the Guidelines provides that

If the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total

7 In its briefs, the government failed to argue that application of § 5G1.2(d) of the Guidelines prevented a finding that defendants’ substantial rights were affected by the Apprendi errors, and instead asserted that the plain error test was not satisfied because the defendants could not show that the errors affected the outcome, primarily due to the government’s assertion that the evidence of drug quantity was overwhelming. We note, however, that this circuit did not hold that § 5G1.2 (d) was a mandatory provision until after oral argument in this case. See United States v. Price, 265 F.3d 1097, 1109 (10th Cir.) (filed Sept. 11, 2001). This court is “not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.” United States Nat’l Bank of Ore. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 446 (1993) (quoting Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991)). “We are free to affirm a district court decision on any grounds for which there is a record sufficient to permit conclusions of law, even grounds not relied upon by the district court.” United States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994) (internal quotation marks omitted). As will be discussed below, we believe that the record sufficiently demonstrates that application of the “stacking” principle of § 5G1.2(d) is the appropriate ground on which to resolve this case.

- 18 - punishment. In all other respects, sentences on all counts shall run concurrently, except to the extent otherwise required by law.

U.S.S.G. § 5G1.2(d) (2001).

Section 5G1.2 addresses the interplay between statutory maximums and

sentences arrived at through application of the Guidelines in sentencing multi-

count indictments. “Total punishment,” as defined in the commentary to the

Guidelines, means the “combined length of sentences” and “is determined by the

adjusted offense level.” In other words, the “total punishment” is the sentence

arrived at for all counts through application of the Guidelines, including

determination of the base offense levels, application of grouping provisions, and

calculation of other adjustments. The district court’s ability to determine the

“total punishment,” based on drug quantities determined under a preponderance of

the evidence standard, for defendants facing multiple convictions remains

untouched by the Apprendi decision, so long as the sentence for a particular count

is within the statutory maximum. See United States v. Buckland, 289 F.3d 558,

570-71 (9th Cir.) (en banc) (stating that Apprendi is not violated when district

court applies Guideline § 5G1.2(d) to issue consecutive sentences under multiple

counts in order to reach an appropriate total sentence under the Guidelines so long

as no sentence under any one count exceeds the maximum allowable under

Apprendi for that count in the absence of a jury determination of drug quantities

- 19 - that would support an enhanced sentence under that count), cert. denied, 122 S.Ct.

2314 (2002).

We recently joined the majority of our sister circuits, who have held that

application of § 5G1.2(d) is mandatory, as the section “speaks in terms of ‘shall’

rather than ‘may.’” Price, 265 F.3d at 1108-09 (collecting cases in which courts

have held § 5G1.2 (d) to be a mandatory provision). The mandatory application

of § 5G1.2 (d) in multi-count indictment cases will often result in Apprendi errors

failing to affect a defendant’s substantial rights, when the district court’s

assessment of the total punishment equals the sentence the defendant originally

received. The district court may not impose a sentence above the statutory

maximum for any particular count, but it will be required under § 5G1.2 (d) to

impose consecutive sentences “to produce a combined sentence equal to the total

punishment.” U.S.S.G. § 5G1.2 (d). We must therefore determine whether the

imposition of consecutive sentences in each of the Lott’s cases would have

resulted in the total punishments determined by the district court. If so, then the

Apprendi error does not affect their substantial rights, and the sentences of the

district court will be affirmed. See, e.g., United States v. McLean, 287 F.3d 127,

137 (2d Cir. 2002) (holding that Apprendi error did not affect substantial rights

where, “in the absence of the error, the application of section 5G1.2(d) of the

Guidelines would have resulted in the same term of imprisonment”); United

- 20 - States v. Bailey, 286 F.3d 1219, 1222 (10th Cir. 2002) (same); United States v.

Outen, 286 F.3d 622, 640 (2d Cir. 2002) (same); Buckland, 277 F.3d at 1184-86

(9th Cir. 2002) (en banc) (same); Price, 265 F.3d at 1109 (10th Cir. 2001) (same);

United States v. Angle, 254 F.3d 514, 518 (4th Cir. 2001) (en banc) (same);

United States v. Sturgis, 238 F.3d 956, 960-61 (8th Cir.) (same), cert. denied, 122

S.Ct. 182 (2001); United States v. Page, 232 F.3d 536, 540 (6th Cir. 2000)

(same), cert. denied sub nom. Linton v. United States, 532 U.S. 935 (2001).

Before turning to the particulars of the defendants’ charges and sentences,

we clarify our holding in United States v. Jones, 235 F.3d 1231 (10th Cir. 2000),

in which we instructed that “idle speculation” as to the sentence that the district

court might impose on remand in a multi-count case would not prevent us from

noticing Apprendi error and remanding for resentencing. Id. at 1238. At the time

Jones was decided, we had not held that § 5G1.2 (d) was a mandatory provision,

thereby preventing us from knowing what total punishment the district court

would impose on remand. Here, however, we can determine with certainty that

the district court will impose consecutive sentences until arriving at a combined

sentence equal to the total punishment it determined for each defendant under the

Guidelines, because a mandatory application of § 5G1.2 (d) requires nothing less.

Therefore, there is no “idle speculation” as to what sentence the district court will

impose.

- 21 - 1. Gary Lott

The quantity of drugs attributed to Gary Lott in his PSR resulted in a base

offense level of 38. Two levels were added for emission of hazardous substance

in Gary Lott’s residences, pursuant to § 2D1.1 (b)(5), and four levels for being

the leader of the conspiracy, pursuant to § 3B1.1(a), resulting in an adjusted

offense level of 44. With a criminal history category of II and a total offense

level of 44, the probation officer determined that the guideline for imprisonment

was life. 8

Although the district court altered the amounts of marijuana equivalent

attributed to Gary Lott, it nonetheless found that the amount for which he was

responsible was five to six times higher than that required for a base offense level

of 38. In all other respects, it adopted the factual findings and Guideline

application of the PSR, including the imprisonment range under the Guidelines—

a life sentence. The court sentenced Gary Lott to concurrent life terms for Counts

1 and 11, the statutory maximum provided under 21 U.S.C. § 841(b)(1)(A). It

also sentenced him to 240 month terms for Counts 6, 7, 8, and 10, which were

also to run concurrently, and a 60 month term for Count 12, which was not to run

concurrently with any other sentence imposed.

8 The probation officer calculated the sentence using the 1998 Guidelines.

- 22 - The question before us is whether, pursuant to § 5G1.2(d), the district

court’s mandatory imposition of consecutive sentences, as opposed to concurrent

ones, on all of the counts would have equaled the life sentence he currently faces

based on the erroneous sentencing under § 841(b)(1)(A). Counts 1 and 11,

violations of 21 U.S.C. § 846, could carry a maximum sentence of twenty years

each, as the quantity of drugs for each count was not proven beyond a reasonable

doubt. Counts 6, 7, and 8, violations of 21 U.S.C. § 856 (a)(1), also could have

carried a maximum sentence of twenty years each. Count 10, a violation of 21

U.S.C. § 841 (d)(1), 9 carries a maximum sentence of twenty years. Finally, Count

12, a violation of 18 U.S.C. § 924 (c)(1), carries a mandatory minimum of five

years. Accordingly, the district court would have been required by § 5G1.2 (d) to

order the maximum sentences on all of Gary Lott’s drug convictions, as well as

five years on his gun possession charge, and to run these sentences consecutively,

resulting in a total consecutive sentence of 125 years. “Under these

circumstances, [Gary Lott’s] substantial rights were not affected by the Apprendi

error,” as a 125 year sentence is the effective equivalent of a life sentence. Price,

265 F.3d at 1109 (finding that defendant’s substantial rights were not affected by

9 The 2000 amendments redesignated the section dealing with possession of chemicals with intent to manufacture a controlled substance as 21 U.S.C. § 841 (c)(1). See 21 U.S.C. 841 (2001) (historical and statutory notes). The text of the section remains unchanged.

- 23 - Apprendi error resulting in a life sentence, where mandatory application of

§ 5G1.2 (d) would have resulted in a total consecutive sentence of 208 years on

all of defendant’s charges).

2. Johnny Lott

The quantity of drugs attributed to Johnny Lott in his PSR resulted in a

base offense level of 38. Two levels were added for possession of a firearm

during the offense, pursuant to § 2D1.1(b)(1), and four levels were added for his

role in the conspiracy, pursuant to § 3B1.1(a). Based on a total offense level of

44 and a criminal history category of IV, the PSR reflected that the guideline

punishment was life.

The district court held Johnny Lott accountable for a lesser amount of

methamphetamine than the PSR did, resulting in a total offense level of 42.

Under the Guidelines, the court calculated his imprisonment range to be 360

months to life. It imposed a 360 month term for Count 1, a violation of 21 U.S.C.

§ 846, and sentenced Johnny Lott under 21 U.S.C. § 841 (a)(1) to a 360 month

sentence for each of Counts 2, 3, and 4. It also imposed a 240 month sentence for

Count 9, a violation of 21 U.S.C. § 856 (a)(1). All sentences were to run

concurrently to each other. We therefore must determine whether the imposition

of consecutive sentences on these counts would equal the thirty year sentence that

Johnny now appeals.

- 24 - Because drug quantity was not proven beyond a reasonable doubt for

Counts 1-4, the maximum sentence Johnny Lott could have received on each of

these counts under 21 U.S.C. § 841 (b)(1)(C) is twenty years. Likewise, his

charge under Count 9 carries a maximum sentence of twenty years. Running

these sentences consecutively, as required by Guideline § 5G1.2(d), easily reaches

the level needed to support a total sentence of thirty years. Therefore, the

Apprendi errors did not affect Johnny Lott’s substantial rights.

Finding that the Apprendi errors did not affect either defendant’s

substantial rights, we affirm the sentences imposed by the district court.

III. Testimony of government witnesses

Gary Lott next challenges the district court’s denial of his motion to

suppress the testimony of certain government witnesses who received or

perceived benefit for their testimony. In reviewing a motion to suppress, this

court accepts “the district court’s factual findings unless clearly erroneous,”

United States v. Bustillos-Munoz, 235 F.3d 505, 511 (10th Cir. 2000) (internal

quotation marks omitted), and issues of law are reviewed de novo. United States

v. Singleton, 165 F.3d 1297, 1299 (10th Cir. 1999) (en banc).

Gary Lott contends that the government’s payment of $3,450 to Judy

Jackson, one of its witnesses, as well as its offer to her of a reduced sentence in

- 25 - return for her testimony, and the plea agreement of Jeffrey Wright, violated 18

U.S.C. § 201 (c)(2), a statute that prohibits “directly or indirectly, giv[ing],

offer[ing], or promis[ing] anything of value to any person, for or because of” the

testimony given by that person.

The thrust of Gary Lott’s argument is that we should overrule our holding

in United States v. Singleton, 165 F.3d 1297 (10th Cir. 1999) (en banc), that

neither the United States nor an Assistant United States Attorney functioning

within the official scope of the office are included within the prohibitions of 18

U.S.C. § 201 (c)(2). He does not present any evidence that there has been an en

banc reconsideration of this issue or a contrary Supreme Court decision since the

Singleton opinion was issued, nor does our research uncover any such cases. He

also does not offer any grounds on which we should distinguish this case from

Singleton. 10 This circuit’s previous en banc decision in Singleton is controlling

10 Singleton dealt with concessions that a prosecutor typically will offer to cooperative witnesses, such as plea agreements, and it limited its holding to those “concession[s] normally granted by the government in exchange for testimony,” Singleton, 165 F.3d at 1302, which are offered within “the official scope of the office.” Id. at 1298. Here, Gary Lott alleges that Ms. Jackson received financial payment in exchange for her testimony, which arguably might be less of a typical concession. However, on this record, Gary Lott has not shown that the money Ms. Jackson received from the FBI between October 1999 and March 1999 was in exchange for her testimony in July 1999, as opposed to reimbursement of expenses associated with the FBI’s investigation of the Lotts and others. In fact, the government states that the money was for expenses, such as pager fees, rent, and utilities, and that these expenses were paid on a monthly basis. The record (continued...)

- 26 - on this panel. See Calderon v. Kansas Dep’t of Soc. & Rehabilitation Servs., 181

F.3d 1180, 1187 (10th Cir. 1999). Accordingly, we affirm the district court’s

decision not to suppress the testimony of Ms. Jackson.

IV. Motion for Acquittal on Firearm Charge

Gary Lott also challenges the district court’s denial of his motion for

judgment of acquittal on Count 12 of possession of a firearm in violation of 18

U.S.C. § 924 (c). We review the “denial of a motion for judgment of acquittal de

novo, viewing the evidence in the light most favorable to the government.”

United States v. Austin, 231 F.3d 1278, 1283 (10th Cir. 2000). We must

determine whether there is evidence “from which a jury could find the defendant

guilty beyond a reasonable doubt.” See id. Although we review the record to

determine if there is evidence to support the verdict, we do not “weigh the

10 (...continued) also reflects that Ms. Jackson “made several buys for [law enforcement officials,]” made “controlled buys,” gave them information, and showed them the location of “meth labs.” Gary Lott has also failed to provide us with Ms. Jackson’s plea agreement with the state of Oklahoma, leaving us unable to discern whether the agreement established that receipt of money was conditioned on her testimony. Thus, this record does not present to us the question of whether financial payments for testimony are unethical and outside the official scope of office so that Singleton is distinguishable. See Model Rules of Prof’l Conduct R. 3.4 cmt. 3 (2002) (“[I]t is not improper to pay a witness’s expenses . . . . The common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying.”). We leave that question for another day.

- 27 - evidence or consider the credibility of the witnesses in making [our]

determination.” Id. Reversal is warranted “‘only if no rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.’”

United States v. Haslip, 160 F.3d 649, 652 (10th Cir. 1998) (quoting United

States v. Wacker, 72 F.3d 1453, 1462-63 (10th Cir. 1995)).

In this case, Count 12 charged that on or about January 21, 1999, Gary Lott

“knowingly carried and possessed a firearm, [the Sig-Sauer automatic pistol found

in the Camaro] during and in relation to and in furtherance of a drug trafficking

offense, that is, attempting to manufacture methamphetamine” in violation of 18

U.S.C. §924(c)(1). This count included two distinct offenses for which the jury

could have found Gary Lott guilty. The statute provides an enhanced sentence for

those “who, during and in relation to any crime of violence or drug trafficking

crime . . . uses or carries a firearm, or who, in furtherance of any such crime,

possesses a firearm.” §924(c)(1)(A) (emphasis added). “[A] crime denounced in

the statute disjunctively may be alleged in an indictment in the conjunctive, and

thereafter proven in the disjunctive.” United States v. Powell, 226 F.3d 1181,

1192 n.4 (10th Cir. 2000). Accordingly, we must examine the evidence to

determine whether the jury could have found Gary Lott guilty either of carrying a

weapon during and in relation to a drug trafficking offense, or of possessing the

weapon in furtherance of the drug trafficking offense. We find sufficient

- 28 - evidence to support a jury finding that Gary Lott possessed a firearm in

furtherance of his attempts to manufacture methamphetamine so we need not

address the “carried” charge. 11

Possession under § 924(c)(1) can be shown through either constructive or

actual possession. See United States v. Wahl, 290 F.3d 370, 375-76 (D.C. Cir.

2002); cf United States v. Mackey, 265 F.3d 457, 460 (6th Cir. 2001) (analyzing

charge under § 924(c)(1) and stating that defendant had conceded constructive

possession of weapon under the statute). “A person has constructive possession

when he or she knowingly holds ownership, dominion, or control over the object

and the premises where it is found.” United States v. Mills, 29 F.3d 545, 549

(10th Cir. 1994). “The government may prove constructive possession by

circumstantial evidence.” Id.

In this case, Officer Fitzwilliam testified that he saw Gary Lott “g[e]t in the

driver’s door and lean[] over the driver’s seat inside the vehicle.” Documents

11 In his brief, Gary Lott does not argue forthrightly that the evidence is insufficient to support the “in furtherance of” prong of § 924(c)(1). He does, however, contest that he did not possess and transport the gun “during and in relation to” the drug trafficking crime–attempting to manufacture methamphetamine. He seemingly focuses on the elements of § 924(c)(1) prior to Congress’s addition of the possession prong in 1998. See generally United States v. Iiland, 254 F.3d 1264, 1270-71 (10th Cir. 2001) (discussing the addition of the possession prong to § 924(c)(1). After reviewing the evidence, we find that it was sufficient to support a jury finding that Gary Lott possessed the gun “in furtherance of” attempting to manufacture methamphetamine.

- 29 - were found inside the Camaro in Gary Lott’s name, including a telephone bill and

various documents found in an unlocked safe found in the vehicle. After

arresting Gary Lott near the Camaro, the police found the gun in question, a

loaded-nine-millimeter Sig-Sauer automatic pistol, sitting on the driver’s seat. A

rational juror could have inferred from this evidence that Gary Lott constructively

possessed the gun. He seemingly had dominion and control over the vehicle, as

evidenced by entering it, and over the gun, as he was leaning over the driver’s

seat minutes before the gun was found there. See United States v. Valdez-

Gallegos, 162 F.3d 1256, 1262 (10th Cir. 1998) (stating that government need

only present “some evidence supporting at least a plausible inference that the

defendant had knowledge of and access to the . . . contraband” (internal quotation

mark omitted)).

We also believe that there is sufficient evidence to support an inference

that the drug was used “in furtherance of” Gary Lott’s drug trafficking activities.

We recently have recognized factors helpful in analyzing whether a firearm was

possessed in furtherance of a drug trafficking offense, including “the type of drug

activity being conducted, the accessibility of the firearm, the type of firearm, the

legal status of the firearm, whether the firearm is loaded, the proximity of the

firearm to the drugs or drug profits, and the time and circumstances under which

the firearm is found.” United States v. Basham, 268 F.3d 1199, 1208 (10th Cir.

- 30 - 2001). Other circuits also have approved of these factors, first articulated in

United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir. 2000), cert.

denied, 531 U.S. 1102 (2001). See Wahl, 290 F.3d at 376; Mackey, 265 F.3d at

462. Although we have instructed that “mere possession of a firearm in proximity

to drugs” would not require a finding that a weapon was possessed in furtherance

of drug trafficking, it could be considered by the jury along with other

circumstantial evidence to determine whether the defendant intended to possess

the weapon “in furtherance of” drug trafficking. Basham, 268 F.3d at 1208. The

Sixth Circuit has found that mere presence of a firearm in the same premises as a

drug transaction is insufficient, and that it is essential that the weapon “be

strategically located so that it is quickly and easily available for use.” Mackey,

265 F.3d at 462.

In this case, a loaded, semi-automatic handgun was found on the driver’s

seat of the Camaro. Also found in the Camaro were various materials used in the

manufacturing of methamphetamine, including a gallon each of toluene and

acetone, a heating plate, various glassware, tubing, rubber stoppers, five bottles of

pseudoephedrine tablets, a four once bottle of vita-blend, three sixteen ounce

bottles of iodine tincture, and a safe. Thus, this case is distinguishable from

United States v. Iiland, 254 F.3d 1264, (10th Cir. 2001), where “[t]here was no

evidence that the guns and drugs were ever kept in the same place or that [the

- 31 - defendant] kept the gun accessible when conducting drug transactions.” Id. at

1274. We conclude that the placement of a loaded, semi-automatic weapon on the

driver’s seat of the car in which the instrumentalities of methamphetamine

manufacturing were also found is sufficient evidence from which a jury could

conclude that the purpose of the gun was to provide defense or deterrence in

furtherance of attempting to manufacture methamphetamine. Therefore, we

affirm the district court’s denial of Gary Lott’s motion for acquittal on his

§ 924(c)(1) charge.

V. Hearsay Exhibits

Johnny Lott challenges the district court’s admission of the truck

registration receipt (exhibit 21) and the postal form (exhibit 68), claiming that

they were inadmissible hearsay. Because he did not raise a hearsay objection to

the admission of these exhibits at trial, 12 we review for plain error only. See

12 Counsel for Johnny Lott objected to the admission of the truck registration receipt on the ground that is was “more prejudicial than probative” and that “no foundation” had been laid for it. Johnny Lott’s counsel also objected to the admission of the postal form on the grounds that it was “more prejudicial than probative,” that there was “no authenticity as to who wrote [Johnny’s name on the form],” and that it had “no date.” These objections, based on grounds other than hearsay, are insufficient to preserve the claim that Johnny Lott advances on appeal—that the exhibits were inadmissible hearsay. See United States v. Martinez, 76 F.3d 1145, 1150 (10th Cir. 1996) (explaining that because objection did not notify the district court that objection was based on hearsay rule (continued...)

- 32 - United States v. Martinez, 76 F.3d 1145, 1150 (10th Cir. 1996). Under this

standard, we reverse a district court, inter alia, “only if we determine that

admitting the statement placed the underlying fairness of the entire trial in doubt

or affected [the defendant’s] substantial rights.” United States v. Rosario

Fuentez, 231 F.3d 700, 708 (10th Cir. 2000) (internal quotation marks omitted).

In this case, we find that admission of neither exhibit rises to reversible error. 13

On appeal, Johnny Lott claims that besides the two contested exhibits, the

government presented “very minimal proof that [he] was connected to his

brother’s drug activities.” We disagree. Three separate witnesses testified

extensively about Johnny Lott’s involvement in the methamphetamine

manufacture and distribution conspiracy and his activities for substantive Counts

2 and 3. 14 The government also presented an undercover agent who testified

about a controlled buy from Johnny Lott. Although Johnny Lott argues that the

government’s three witnesses had credibility issues due to their own drug use and

12 (...continued) of evidence, claim of inadmissible hearsay on appeal would be reviewed for plain error only). 13 Because we conclude that the information in the exhibits was not prejudicial, we need not decide whether their admission was actual error or whether the error was plain or whether the error casts doubts upon the underlying fairness of the entire trial. 14 On appeal, Johnny Lott does not argue that admission of exhibits 21 and 68 merits reversal of his conviction on Count 4.

- 33 - criminal records, this evidence was presented to the jury on cross-examination.

Thus, we find that the admission of the exhibits did not affect Johnny Lott’s

substantial rights because there was ample evidence linking Johnny Lott to the

conspiracy’s drug activities and of his distribution as charged in Counts 2 and 3.

Accordingly, we affirm the trial court’s admission of exhibits 21 and 68.

VI. Substitution of Counsel

Johnny Lott claims that the district court erred when it failed to conduct an

inquiry into his requests for new counsel following trial and prior to sentencing.

“We review a district court’s refusal to substitute counsel for an abuse of

discretion.” United States v. Beers, 189 F.3d 1297, 1302 (10th Cir. 1999)

(internal quotation marks omitted). “To warrant a substitution of counsel, the

defendant must show good cause, such as a conflict of interest, a complete

breakdown of communication or an irreconcilable conflict which leads to an

apparently unjust verdict.” United States v. Padilla, 819 F.2d 952, 955 (10th Cir.

1987) (internal quotation marks omitted). Good cause for substitution of counsel

consists of more than a mere strategic disagreement between a defendant and his

attorney, see Beers, 189 F.3d at 1302; rather, there must be a total breakdown in

communications. United States v. Doe #1, 272 F.3d 116, 124 (2d Cir. 2001).

-34- A. Right to a Hearing.

If a defendant makes sufficiently specific, factually based allegations in

support of his request for new counsel, the district court must conduct a hearing

into his complaint. See Padilla, 819 F.2d at 956 n.1 (“[T]he district court should

make formal inquiry into the defendant’s reasons for dissatisfaction with present

counsel when substitution of counsel is requested.”); Doe #1, 272 F.3d at 123

(same); United States v. Young, 482 F.2d 993, 995 (5th Cir. 1973) (same); United

States v. Jennings, 945 F.2d 129, 132 (6th Cir. 1991) (same); Smith v. Lockhart,

923 F.2d 1314, 1320 (8th Cir. 1991) (same); Schell v. Witek, 218 F.3d 1017, 1025

(9th Cir. 2000) (en banc) (same).

Hearings typically are crucial for what they add to a district court’s

knowledge in this context. 15 They help a court determine whether an attorney-

client conflict rises to the level of a “total breakdown in communication” or

15 Formal inquiry may not be necessary, however, “where the defendant otherwise stated his reasons for dissatisfaction on the record.” Beers, 189 F.3d at 1302 (quoting United States v. Willie, 941 F.2d 1384, 1391 (10th Cir. 1991) (internal quotation marks and citations omitted)). “[I]f the reasons proffered are insubstantial and the defendant receives competent representation from counsel, a court’s failure to inquire sufficiently or to inquire at all constitutes harmless error.” Doe #1, 272 F.3d at 123. Nor would a hearing be necessary if it would add nothing to the district court’s understanding of the defendant’s complaint—if, for example, the defendant were moving to substitute counsel solely based on something that his attorney did in the courtroom, in full view of the trial judge, and the attorney in open court had already stated the reasons for his or her conduct.

-35- instead whether the conflict is insubstantial or a mere “disagreement about trial

strategy [that] does not require substitution of counsel.” United States v. Taylor,

128 F.3d 1105, 1110 (7th Cir. 1997). The types of communication breakdowns

that constitute “total breakdowns” defy easy definition, and to our knowledge no

court or commentator has put forth a precise definition. As a general matter,

however, we believe that to prove a total breakdown in communication, a

defendant must put forth evidence of a severe and pervasive conflict with his

attorney or evidence that he had such minimal contact with the attorney that

meaningful communication was not possible.

In this case, Johnny Lott made a sufficient allegation of good cause to

substitute counsel. After his conviction in July 1999 but before sentencing, he

filed five pro se motions—from October 1999 to March 2000—alleging various

dissatisfactions with his court-appointed attorney. In each motion, Johnny Lott

told the district court that his attorney had completely failed to communicate with

him. Although several of the earlier motions appeared to request a mistrial, the

later two motions explicitly requested new counsel for all subsequent

proceedings, which include sentencing. The district court denied those motions,

stating that “defendant has not made the required showing.” That finding, in the

face of Johnny Lott’s repeated assertions that his attorney failed to communicate

with him and in the absence of conducting a hearing, was an abuse of the court’s

-36- discretion. We therefore REMAND Johnny Lott’s case to the district court for a

hearing into his allegations of a total breakdown in communication between him

and his attorney. 16

B. Standard to be applied at the hearing to determine whether Johnny Lott should be given new counsel and resentenced.

On rehearing, the district court should look for general guidance to our

decision in Romero v. Furlong, 215 F.3d 1107 (10th Cir. 2000) (addressing an

ineffective assistance of counsel claim in the habeas context), as it considers

whether there has been a complete breakdown in communication and what relief

should be provided. 17 In Romero, we considered four factors when examining the

constitutional implications of a total breakdown in communication: 1) whether the

defendant’s motion for new counsel was timely; 2) whether the trial court

adequately inquired into defendant’s reasons for making the motion; 3) whether

the defendant-attorney conflict was so great that it led to a total lack of

communication precluding an adequate defense; and 4) whether the defendant

Because Johnny Lott made none of his motions prior to the finding of 16

guilt and because he only seeks new counsel for resentencing, this hearing will only implicate the sentencing stage of the trial. 17 We rely on Romero here solely for its analysis of a breakdown in communications between a lawyer and client and if one is found to exist, what relief is appropriate. As we stress below, infra at 42-43, we do not intend to conflate claims for ineffective assistance of counsel with motions to substitute counsel after a complete breakdown of communications.

-37- substantially and unreasonably contributed to the communication breakdown. Id.

at 1113.

“Even if a defendant’s counsel is competent, a serious breakdown in

communication can result in an inadequate defense.” United States v. Musa, 220

F.3d 1096, 1102 (9th Cir. 2000). A defendant who cannot communicate with his

attorney cannot assist his attorney with preparation of his case, including

suggesting potential witnesses to call and trial strategies to pursue, discussing

whether the defendant himself should testify, and helping formulate other bread-

and-butter decisions that can constitute the core of a successful defense. A trial

court’s failure to appoint new counsel when faced with a total breakdown in

communication may thus constitute a denial of counsel in violation of the Sixth

Amendment. 18

As with most constitutional violations, however, that failure is subject to

harmless error analysis under Chapman v. California, 386 U.S. 18 (1967).

Chapman places “[t]he burden... on the government to prove beyond a reasonable

18 A complete breakdown in communication between a defendant and his attorney is not, however, equivalent to the complete denial of counsel held to be unconstitutional structural error in Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963). See Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991). An attorney who cannot or does not communicate with his client may still be able to argue effectively on his behalf. As we discuss below, however, the government’s burden in proving a total communication breakdown to be harmless is an extremely heavy one.

-38- doubt that an error is harmless.” United States v. Miller, 111 F.3d 747, 751 (10th

Cir. 1997). In this case, after the required hearing, if the district court finds that

there was a total communication breakdown between Johnny Lott and his

attorney, and the government fails to prove that the breakdown was harmless,

Johnny Lott’s sentence must be vacated and he should receive a new sentencing

proceeding with new counsel.

We believe that harmless error analysis is appropriate in this context

following the Supreme Court’s decision in Arizona v. Fulminante, 499 U.S. 279

(1991). There, the Court stated that “most constitutional errors can be harmless,”

including violations of the Sixth Amendment. Id. at 306-07. That case applied

harmless error review to the admission of a defendant’s confession obtained in

violation of the Fifth and Fourteenth Amendments. See id. at 311. In Coleman v.

Alabama, 399 U.S. 1 (1970), the Court held that the denial of counsel to a

defendant at a preliminary hearing in violation of the Sixth Amendment was

subject to harmless error review, even though that hearing was a “critical stage”

of the state’s criminal process. See id. at 9-10. And in Gilbert v. California, 388

U.S. 263 (1967), the court applied harmless error review to a defendant’s denial

of counsel at a post-indictment lineup. See id. at 273-74. In neither Coleman nor

Gilbert was there a “total deprivation of the right to counsel”—the “structural

defect[]” that Gideon prohibits. Fulminante, 499 U.S. at 309.

-39- Indeed, the Fulminante Court emphasized that such structural errors—“the

category of constitutional errors which are not subject to harmless error”

review—are limited in scope. Id. at 309-10. It listed five such errors, including

total deprivation of the right to counsel. See id. The structural errors listed by

the Fulminante Court are clear-cut violations whose presence a reviewing court

can determine on the face of the record. By contrast, a claim of a total breakdown

in communication will typically require some inquiry into the relationship and

contact between the defendant and the attorney as well as an assessment of

responsibility for the breakdown. See Romero, 215 F.3d at 1113-14. Brief

disagreements or arguments will not suffice to prove total breakdown. And even

an attorney who has had no communication with the client could conceivably

provide such services that the lack of client communication could be shown to be

harmless, whereas, in contrast, the total absence of an attorney could never be

harmless because no attorney services are rendered at all. For these reasons, a

total breakdown in communication should not be labeled structural error.

The proper analysis should be the Chapman’s harmless error analysis,

where the government must prove that a total breakdown in communication was

harmless beyond a reasonable doubt. Communication between a defendant and

his attorney will often be crucial at the sentencing stage, as the attorney must

learn as much as possible about the defendant and his background in order to

-40- present mitigating factors on his behalf. If there was a total breakdown in

communications at sentencing, the government will bear the substantial burden of

showing that it was harmless beyond a reasonable doubt.

Three Circuits—the Seventh, Eleventh and District of Columbia—have

applied, in lieu of Chapman’s harmless error standard, the prejudice analysis of

Strickland v. Washington, 466 U.S. 668 (1984), to a district court’s failure to

conduct a hearing based upon allegations of a total breakdown in communication.

Those circuits require the defendant to show that but for the counsel’s

deficiencies, the result of the proceeding would have been different. See, e.g.,

United States v. Zillges, 978 F.2d 369, 372 (7th Cir. 1992); United States v.

Calderon, 127 F.3d 1314, 1343 (11th Cir. 1997); United States v. Graham, 91

F.3d 213, 221 (D.C. Cir. 1996). 19 This, of course, is a very different test and

much more onerous on the defendant than the Chapman harmless error test.

Under Strickland, the defendant must prove that but for the error, there is a

reasonable probability that the result of the proceeding would have been different.

Under a Chapman harmless error standard, the government must prove beyond a

19 Even under a Strickland standard, these cases misstate the test. Strickland only requires a defendant to show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. To require a showing, as articulated in Zillges, Calderon, and Graham, that “but for the counsel’s deficiencies, the result of the proceeding would have been different” is not an accurate statement of the Strickland test, even if it were applicable.

-41- reasonable doubt that the error was harmless. We disagree with the use of

Strickland’s prejudice standard in this context for three reasons.

First, Strickland requires a reviewing court to examine the trial as a whole

for fundamental unfairness. See Strickland, 466 U.S. at 687. By contrast, a

defendant’s Sixth Amendment right to counsel can be violated by the deprivation

of that right at any critical stage of the proceedings against him. See Geders v.

United States, 425 U.S. 80, 91 (1976). 20 Because motions to substitute counsel

can be brought at any time—before, during or after trial—it is often impossible

for a court to consider the trial as a whole when reviewing those motions.

Strickland is therefore inapposite.

Second, if we were to conflate Strickland’s ineffective assistance inquiry

with a defendant’s motion to substitute counsel, we would in effect be analyzing

motions to substitute counsel as ineffectiveness claims, which must almost always

be brought on collateral attack. See United States v. Galloway, 56 F.3d 1239,

20 The Geders Court did not address harmless error. But it is doubtful that harmless error would apply on the facts of that case, where the trial judge prohibited the defendant from speaking to his attorney during the overnight recess between the defendant’s direct examination and cross-examination. See Geders, 425 U.S. at 91-92. An attorney’s decision not to speak with his client under these limited circumstances would almost certainly receive a reviewing court’s “considerable deference to an attorney’s strategic decisions.” Bullock v. Carver, 297 F.3d 1036, 1044 (10th Cir. 2002). By contrast, a court’s decision to limit communication in that way could never be deemed a strategic decision of the attorney—and thus should not receive such deference.

-42- 1242 (10th Cir. 1995) (en banc). We would thus effectively eliminate a

defendant’s ability to bring a right to counsel claim on direct appeal. That we

decline to do.

Third, it is at least possible for a defendant to receive effective assistance

of counsel even in the face of no communication with his attorney, just as it is

possible for a defendant to receive ineffective assistance of counsel when the

defendant and counsel do communicate. Good communication does not guarantee

effective assistance of counsel, and bad communication does not guarantee

ineffective assistance of counsel. It is precisely because effective communication

and effective assistance do not always correspond that the two claims should be

analyzed separately. And in this regard, we note that regardless of how we or the

district court decide Johnny Lott’s motion to substitute counsel, the ruling on that

issue is not preclusive of a collateral claim of ineffective assistance of counsel

under Galloway.

VII. Conclusion

For the reasons stated above, we AFFIRM the district court with respect to

Gary Lott and AFFIRM the district court on all of Johnny Lott’s claims except for

the district court’s orders denying Johnny Lott an evidentiary hearing on his claim

of a total breakdown of communication with his counsel at the sentencing stage.

As to those orders, we REVERSE and REMAND Johnny Lott’s case to the district

-43- court for a hearing into his complaint of a total breakdown in communication

between him and his attorney.

-44-