215 F.3d 776 (7th Cir. 2000)
United States of America,    Plaintiff-Appellee,v.Andrew ("Bay-Bay") Patterson, Robert Patterson,  Henry Patterson, Andrew L. ("Maine") Patterson,  Tyrone Williams, Andre Williams, Durwin Baker,  Terry Clark, Willie Connor, Maurice Foster,  Gregory Hubbard, Jerry Patterson, Lennell  Patterson, Odell Sumrell, and Edgar Williams,    Defendants-Appellants.
Nos.  97-3132, 97-3159, 97-3163, 97-3480,  97-3666, 97-3683, 97-3697, 98-1066,  98-1265, 98-1310, 98-1981,  98-1991, 98-2362, 98-3115 & 98-3625
In the  United States Court of Appeals  For the Seventh Circuit
Argued February 15, 2000
Decided June 1, 2000

Appeals from the United States District Court  for the Northern District of Illinois, Eastern  Division.  No. 95 CR 242--Robert W. Gettleman, Judge. [Copyrighted Material Omitted]
Before Posner, Chief Judge, and Easterbrook  and Diane P. Wood, Circuit Judges.
Easterbrook, Circuit Judge.


1
Fifteen  defendants appeal their convictions for  drug-related offenses. Four of their  confederates pleaded guilty and testified  for the prosecution at the 20-week trial.  More evidence came from tape recordings  of incriminating conversations. The jury  was entitled to conclude that all 15  appellants were affiliated with the  Traveling Vice Lords street gang. Andrew  "Bay-Bay" Patterson, one of the gang's  "five-star universal elites," was  defendants' leader. We use the street  name "Bay-Bay" because eight Pattersons  were among the defendants, and Bay-Bay's  nephew "Maine" Patterson shares the given  name "Andrew." Bay-Bay supplied the  drugs, while his brothers Robert and  Henry supervised their distribution. The  operation lasted at least a decade and  during its best years grossed more than  $40,000 a day in retail sales. Sentences  are correspondingly high: the shortest  term for any appellant is 210 months'  imprisonment, and three of the  appellants, including Bay-Bay and Robert,  were sentenced to life imprisonment.  Because the arguments presented on appeal  are self-contained, we omit further  details.


2
* The district court used a struck-jury  system to select the jurors. Members of  the venire were screened, and some were  excused for cause, until the court had a  pool large enough to seat a jury and  alternates, taking account of peremptory  challenges. In a criminal case the  defense is entitled to 10 challenges and  the prosecution 6, Fed. R. Crim. P.  24(b), plus up to 3 more to be exercised  against alternates, Rule 24(c)(2), and in  a multi-defendant case the district court  may award extra challenges. It did so  here, granting the defendants  (collectively) 20 and the prosecutor 12,  plus 2 apiece for alternates. Because the  judge planned to seat 12 jurors and 8  alternates, the pool had to contain 56  persons, to ensure that if all peremptory  challenges were exercised (and the  prosecution and defense never challenged  the same person) 20 persons would be  left. After the initial screening for  cause, 63 members of the venire remained,  and the district judge put all 63 into  the pool for the exercise of peremptory  challenges (and any belated challenges  for cause). The judge decided not to  establish a priority within this pool.  All 63 had an equal chance of serving.  After peremptory challenges were  exercised, some adjustments were made  (the judge granted additional challenges  because some strikes overlapped), and 31  persons remained, the clerk shuffled the  juror cards and drew 12 to be the jurors.  Then each side exercised 2 challenges  against the residual pool of 19, the  clerk shuffled the remaining cards, and 8  alternates were drawn.


3
Defendants objected to this procedure  (and to avoid parsing who objected to  what, we treat everyone as objecting to  everything). They wanted to know the  sequence in which members of the pool  would be called to sit on the jury, so  that they could concentrate their  challenges on those persons most likely  to serve. As the district court organized  matters, however, every member of the  pool was equally likely to sit, so the  defense could not target challenges  strategically. Moreover, the extra  members in the pool diluted the utility  of each challenge by the ratio 56/63. The  20 challenges that the defendants  initially were allotted had the same  practical effect with a 63-person pool as  18 challenges would have had with a 56-  person pool. The pool's extra size  effectively deducted 2 challenges.


4
All members of the jury actually seated  in the case were impartial. Still,  defendants insist that the convictions  must be reversed, because they were  unable to make the best of their  peremptory challenges. As defendants see  it, the district judge committed at least  four errors in the jury-selection  process:


5
The court created a pool of 63  venire members, instead of the 56  that would exactly equal the  number of jurors needed plus the  number of challenges. United  States v. Ricks, 802 F.2d 731,  737 (4th Cir. 1986) (en banc),  declared that excess membership  in a struck-jury pool always is  reversible error unless the judge  unequivocally reveals the order  of selection from the pool.


6
The judge did not list the pool's  members in order, which defeated  defendants' efforts to target the  persons who were most likely to  serve. United States v.  Underwood, 122 F.3d 389 (7th Cir.  1997), held that a related  deficit of information about the  order in which jurors would  emerge from the pool always is  reversible error.


7
Although Fed. R. Crim. P.  24(c)(1) provides that a "court  may empanel no more than 6  jurors, in addition to the  regular jury, to sit as alternate  jurors," the district judge  decided to select 8 alternates.  This diluted the effectiveness of  the peremptory challenges  available to remove potential  alternate jurors.


8
Although Fed. R. Crim. P.  24(c)(2) provides that defendants  receive 3 additional peremptory  challenges when the district  judge seats 5 or 6 alternates,  the judge in this case allowed  only 2 extra challenges for 8  alternates--a 1-to-4 ratio,  instead of Rule 24(c)'s 1-to-2  ratio.


9
None of these events calls into question  the impartiality of the jury eventually  selected, which makes it hard to see why  there is any real problem. United States  v. Martinez-Salazar, 120 S. Ct. 774  (2000), decided after Ricks and Underwood  (the cases on which defendants  principally rely), stresses that  peremptory challenges have served their  purpose when the jury finally selected is  impartial. Martinez-Salazar rejects any  argument that a party is entitled to  devote all peremptory challenges to  strategic use such as eliminating  unbiased jurors who a party believes may  (perhaps because of their open minds)  favor the other side. A peremptory  challenge devoted to removing a juror who  should have been disqualified for cause  is not, the Court held, equivalent to  depriving the party of a peremptory  challenge; instead this is one common and  proper use of a challenge. Here, as in  Martinez-Salazar, the defendants had the  prescribed 10 challenges; indeed they had  twice that, and if the overflow of the  pool meant that they had an equivalent of  "only" 18 challenges, that was plenty.


10
What led to reversal in Underwood was an  ambiguity in the district judge's jury-  selection protocol that led the  defendants to misunderstand the sequence  in which members of the pool would be  seated on the jury. That misunderstanding  led the defendants not to challenge two  persons who they thought were so far back  in the order that they were unlikely to  be seated, but who actually served. If an  ambiguity that affected two challenges is  reversible error, then failure to  establish any sequence, a step that  potentially affected all 20 challenges,  must be error too. However logical that  argument may be, Underwood is no longer  authoritative after Martinez-Salazar. Our  views in Underwood reflected the belief  that defendants are entitled to make  maximum strategic use of their peremptory  challenges. That same conception of  defendants' entitlements led the ninth  circuit to hold that "losing" a  peremptory challenge in order to remove a  juror who should have been excused for  cause is reversible error. United States  v. Martinez-Salazar, 146 F.3d 653 (9th  Cir. 1998). But the Supreme Court took a  different tack, observing that Martinez-  Salazar did not lose a peremptory  challenge but instead used it "in line  with a principal reason for peremptories:  to help secure the constitutional  guarantee of trial by an impartial jury."  120 S. Ct. at 782. Just so here.  Defendants received their allotment of  10, and to spare. They had full use of  all challenges for the purpose of  securing an impartial jury. That  defendants could not use them to maximum  strategic advantage seems to us a benefit  rather than a problem.


11
Formally, at least, the district judge's  handling of alternates is more  problematic. Rule 24(c)(2) grants 3 extra  challenges for 6 alternates; the district  judge allowed 2 extra challenges for 8  alternates. This looks like a reduction  in the number of challenges provided by  the rule, something that did not happen  in Martinez-Salazar. Appearances may  deceive, because everyone in the pool of  potential alternates had passed the first  wave of peremptory challenges. Any extra  challenges provided for the selection of  alternates meant that the defendants (and  the prosecutor) had a higher ratio of  challenges to alternates than of  challenges to principal jurors. Rule  24(c)(2) assumes that jurors will be  selected either by the jury-box system or  by a struck-jury method in which  defendants know the sequence in which  members of the pool will be seated. When  the sequence is known, defendants  concentrate their challenges on venire  members at the front of the queue; Rule  24(c)(2) provides extra challenges for  the selection of alternates because  otherwise defendants might have no  peremptories left when the time arrives  to pick alternates. Because the  peremptory challenges exercised against  the pool of 63 were as likely to excuse  would-be alternates as to excuse would-be  regular jurors, there was no need for a  second allotment of challenges. But the  Rule provides for them anyway, and it was  violated. Defendants argue for automatic  reversal. Once again Martinez-Salazar  leads to a different approach.


12
Underwood drew its rule of automatic  reversal from the statement in Swain v.  Alabama, 380 U.S. 202, 219 (1965), that  "[t]he denial or impairment of the right  [to peremptory challenge] is reversible  error without a showing of prejudice."  Underwood, 122 F.3d at 392. Relying on  Ross v. Oklahoma, 487 U.S. 81 (1988), the  prosecutor argued that harmless-error  analysis applies to problems concerning  peremptory challenges. We replied, 122  F.3d at 392: "Ross does not authorize us  to abandon the automatic reversal rule  that the Supreme Court announced in Swain  where, as here, a denial or impairment of  a defendant's statutory right to the  intelligent exercise of peremptory  challenges is found." Underwood thus  relies entirely on Swain for the rule of  automatic reversal. Martinez-Salazar,  however, had this to say on the subject:


13
Relying on language in Swain v.  Alabama, 380 U.S. 202 (1965), as did  the Court of Appeals in the decision  below, Martinez-Salazar urges the  Court to adopt a remedy of automatic  reversal whenever a defendant's  right to a certain number of  peremptory challenges is  substantially impaired. Brief  for Respondent 29 (quoting Swain, 380  U.S., at 219 (a "'denial or  impairment of the right [to exercise  peremptory challenges] is reversible  error without a showing of  prejudice'")). Because we find no  impairment, we do not decide in this  case what the appropriate remedy for  a substantial impairment would be.  We note, however, that the oft-  quoted language in Swain was not  only unnecessary to the decision in  that case--because Swain did  notaddress any claim that a  defendant had been denied a  peremptory challenge--but was  founded on a series of our early  cases decided long before the  adoption of harmless-error review.


14
120 S. Ct. at 782 n.4. Martinez-Salazar  did not decide the harmless-error  question, but this language pulls the  plug on the Swain dictum and requires us  to address the harmless-error question as  an original matter.


15
Peremptory challenges come from Rule 24,  and Rule 52(a) adds: "Any error, defect,  irregularity or variance which does not  affect substantial rights shall be  disregarded." See also 28 U.S.C.  sec.2111. Martinez-Salazar makes it clear  that peremptory challenges do not have an  independent constitutional source; their  provenance is statutes and rules. 120 S.  Ct. at 779. See also Ross, 487 U.S. at  88. Rule 52(a) says that deviation from  the rights established by Rule 24 and  other provisions of the Rules of Criminal  Procedure leads to reversal only if the  error affects "substantial rights".  Errors much more serious than the loss of  a peremptory challenge or two are  analyzed under this standard. E.g., Neder  v. United States, 527 U.S. 1 (1999)  (omission from jury instructions of an  element of the offense); Jones v. United  States, 527 U.S. 373 (1999) (inclusion of  improper aggravating factor in a capital  case); United States v. Lane, 474 U.S.  438 (1986) (misjoinder). See also, e.g.,  Peguero v. United States, 526 U.S. 23  (1999); Bank of Nova Scotia v. United  States, 487 U.S. 250 (1988); United  States v. Hasting, 461 U.S. 499 (1983).  Rule 52(a) requires us to undertake harm  less-error analysis.


16
Defendants respond that an error  concerning a peremptory challenge always  affects a "substantial" right. A right is  "substantial" when it is one of the  pillars of a fair trial. Trial before an  orangutan, or the grant of summary  judgment against the accused in a  criminal case, would deprive the  defendant of a "substantial" right even  if it were certain that a jury would  convict. Sullivan v. Louisiana, 508 U.S.  275, 279 (1993). For the same reason, a  biased tribunal always deprives the  accused of a substantial right. Bracy v.  Gramley, 520 U.S. 899 (1997). See also  Gomez v. United States, 490 U.S. 858, 876  (1989) (decision by an unauthorized  tribunal deprives the defendant of a  substantial right). Deprivation of  counsel likewise so undermines the  ability to distinguish the guilty from  the innocent that it always leads to  reversal. See United States v. Cronic,  466 U.S. 648, 658-59 (1984); Castellanos  v. United States, 26 F.3d 717 (7th Cir.  1994). But "if the defendant had counsel  and was tried by an impartial  adjudicator, there is a strong  presumption that any other errors that  may have occurred are subject to  harmless-error analysis." Rose v. Clark,  478 U.S. 570, 579 (1986). It is  impossible to group an error concerning  peremptory challenges with the denial of  counsel or trial before a bribed judge.  When the jury that actually sits is  impartial, as this one was, the defendant  has enjoyed the substantial right.  Peremptory challenges enable defendants  to feel more comfortable with the jury  that is to determine their fate, but  increasing litigants' comfort level is  only one goal among many, and reduced  peace of mind is a bad reason to retry  complex cases decided by impartial  juries.


17
McDonough Power Equipment, Inc. v.  Greenwood, 464 U.S. 548 (1984), makes the  point. A juror's failure to respond to a  question on voir dire deprived a party of  information that would have been useful  in exercising a peremptory challenge.  Relying on 28 U.S.C. sec.2111 and Fed. R.  Civ. P. 61, a civil analogue to Rule  52(a), the Court concluded that reversal  would not be justified unless a correct  response by the juror "would have  provided a valid basis for a challenge  for cause." 464 U.S. at 556. The Court  recognized the importance of information  to the intelligent exercise of peremptory  challenges but concluded that "[t]he  harmless-error rules adopted by this  Court and Congress embody the principle  that courts should exercise judgment in  preference to the automatic reversal for  'error' and ignore errors that do not  affect the essential fairness of the  trial." Id. at 553. Although McDonough is  a civil case, its essential principle is  applicable to criminal cases as well.


18
In any given situation there remains the  possibility that a blunder affects a  right that is substantial in the sense of  Kotteakos v. United States, 328 U.S. 750  (1946): that it "had substantial and  injurious effect or influence in  determining the jury's verdict". 328 U.S.  at 776. See also United States v. Olano,  507 U.S. 725, 734-35 (1993). An  exceptionally confused jury-selection  process may have such an effect. (Thus we  do not say that the result in Underwood  was necessarily wrong, only that its  resort to a rule of automatic reversal is  incompatible with Rule 52.) In a trial  like this, however, the possibility that  an error altered the outcome is too  remote to be worth investigating. One or  two extra peremptory challenges to remove  additional members of a panel that  already had been subject to 22 peremptory  challenges by the defense could not have  affected the outcome of the case. This  was a well-screened panel, and the jury  that sat was impartial. Doubtless it will  often be impossible to show that a change  in the number of peremptory challenges  affected the outcome of a trial--but  inability to trace adverse effects to a  mistake does not justify reversing a  conviction; it shows instead that there  is no warrant for disturbing the  judgment. United States v. Morrison, 449  U.S. 361 (1981).

II

19
Customers were reluctant to approach  defendants' distribution outlets while  police were visible. Officer Robert  Drozd, in particular, gave the operation  trouble. One day in 1991 Drozd, seeing  more than 30 cars queued up for service  at the gang's "spot," began waving the  drivers to get under way. Henry Patterson  complained: "Bob, you're killing us."  When Drozd feigned ignorance about the  meaning of this comment and the purpose  of the cars in the street, Henry offered:  "Can we do something?" Again Drozd played  dumb, and Henry continued: "Well, can I  give you a gun?" Drozd agreed to this  bribe, and 20 minutes later he was  directed to an alley from which he  retrieved a sawed-off shotgun. Thus began  a course of dealing in which Drozd caused  trouble, one or more of the defendants  offered a gun, and after picking up his  reward Drozd left. Usually the Pattersons  told Drozd where to find a weapon, but  sometimes a hand-to-hand exchange was  made. Drozd reported these bribes to  federal officials. Nine of the 15  appellants were involved in the guns-for-  protection deals and were convicted of  violating 18 U.S.C. sec.924(c)(1), which  makes it a crime to use or carry a  firearm during and in relation to a drug  trafficking offense.


20
Bailey v. United States, 516 U.S. 137  (1995), holds that a gun is "used" within  the meaning of sec.924(c)(1) only when it  is employed actively, as by shooting it  or waiving it about to intimidate people.  Simple possession differs from "use,"  Bailey concludes. (Section 924(c) has  since been amended; we refer to the  version in force when these events  occurred.) Defendants insist that leaving  guns for Drozd to "find" is not  sufficiently active to qualify as "use"  under sec.924(c)(1). But they don't  reckon with Smith v. United States, 508  U.S. 223 (1993), which holds that the  exchange of a gun for drugs is a "use" of  the gun within the meaning of  sec.924(c)(1). Bailey gave the  transaction in Smith as an example of a  sufficiently active employment of a  weapon. 516 U.S. at 143. We can't see any  difference between gun-for-drugs (held  sufficient in Smith) and gun-for-  protection (the situation here). In each  case the gun's owner has bartered the  weapon for a drug-related benefit--either  drugs (in Smith) or a continued ability  to sell drugs (our case). Bribing an  officer with a gun in order to go on  selling drugs is a use of the gun "during  and in relation to" the drugs'  distribution. Defendants rely on United  States v. Westmoreland, 122 F.3d 431,  435-36 (7th Cir. 1997), which held that  accepting a gun in exchange for drugs  does not violate sec.924(c)(1), even  though per Smith accepting drugs in  exchange for a gun does. Perhaps the  transaction in Westmoreland was best  understood as using drugs during and in  relation to a firearms offense. Using  drugs as currency to buy guns does not  "use" the guns. But by bribing Drozd with  guns, the defendants actively used  firearms during and in relation to their  drug business.

III

21
Timothy S. Hearst, who represented  Robert Patterson at trial, was not  reliable. Many days he was late; others  he did not appear at all. He missed seven  days of Drozd's testimony, four of five  sessions of the jury instruction  conference, most of the other defendants'  closing arguments, and proceedings to  address notes from the jury during  deliberations. He had a short legal  career; admitted to practice in 1992,  Hearst was disbarred in March 1999 for  neglecting cases and converting clients'  funds. But in post-trial proceedings, the  district court concluded that Hearst  furnished Robert with effective  assistance of counsel--first because  Hearst vigorously cross-examined the  prosecution's witnesses and mounted a  plausible defense (that there were  multiple conspiracies and that Robert did  not join the single conspiracy charged in  the indictment), and second because it  was impossible to show prejudice given  the strength of the prosecution's  evidence. The hearing on Hearst's conduct  spanned three days. Rare is the claim of  ineffective assistance that can be  evaluated intelligently on direct appeal,  but, because Robert's contentions have  received the district judge's full  consideration on a record the parties  agree is complete, they are properly  before us now. Guinan v. United States, 6  F.3d 468 (7th Cir. 1993). Moreover, the  parties have agreed, in memoranda filed  after the oral argument, that a remand  for further hearings is not necessary or  appropriate. We must evaluate Robert's  contentions on the record as it stands.


22
Abandoning any argument that he suffered  prejudice from Hearst's performance,  Robert advances the more promising  contention that for extended portions of  the trial he just did not have any  lawyer--and that deficiency violates the  sixth amendment even if the defendant  cannot establish a likely effect on the  outcome. Satterwhite v. Texas, 486 U.S.  249, 256 (1988); United States v. Cronic,  466 U.S. 648, 658-59 (1984); United  States v. Russell, 205 F.3d 768 (5th Cir.  2000). Cf. Roe v. Flores-Ortega, 120 S.  Ct. 1029, 1038 (2000). To this the  prosecutor responds that Robert always  had counsel--though not always Hearst.  Lawyers representing the other defendants  stood in for Hearst while he was awol. If  Robert consented to this switch in  representation, then he had a lawyer  throughout the proceedings and cannot  invoke the abandonment principle.


23
But did he consent? Here is an exchange  that the parties agree is typical:


24
THE COURT:  Good morning, everyone.  Please be seated. Everybody here,  ready to go?


25
MR. PILOLLA:  Mr. Hearst is not  here. I am standing in for him.


26
THE COURT:  Who is it?


27
MR. PILOLLA:  Mr. Hearst.


28
THE COURT:  Mr. Hearst. You are  standing in for him, Mr. Pilolla?


29
MR. PILOLLA:  I am.    MS. MURDOCK:  Does his client waive  his presence?


30
THE COURT:  Does Mr. Hearst's client  waive his presence? Mr. Patterson?


31
DEFENDANT R. PATTERSON:  Yes.


32
THE COURT:  Thank you, sir.


33
The district judge did not ask Robert  what he understood by "waiv[ing Hearst's]  presence"--in particular, the judge did  not inquire whether Robert understood the  other options, and understanding one's  options is an essential ingredient of  waiver when the right at stake is  counsel. See Johnson v. Zerbst, 304 U.S.  458 (1938). On another occasion the judge  asked Robert whether he had "any  objection" to "being represented by Mr.  Aron" when Hearst was not present; Robert  replied "Yeah, it's okay." The judge's  abbreviated inquiries would have been  adequate if Hearst's absences had been  few or brief; virtual representation is  common and proper in extended, multi-  defendant trials. See United States v.  Jackson, 207 F.3d 910, 918-19 (7th Cir.  2000). But Hearst's absences were too  common and too lengthy for the normal  stand-in approach. What happened looks  more like a partial substitution of  counsel, or the appointment of co-counsel  to assist Hearst, and such steps require  additional care. Did Robert know that he  had other options? If Robert believed  that the only alternative to proceeding  with Pilolla, Aron, or other defendants'  lawyers was proceeding with no lawyer at  all for extended portions of the trial,  then the waiver is ineffectual. See  United States v. Morrison, 946 F.2d 484,  502 n.4 (7th Cir. 1991). If, however,  Robert knew that he had a right to his  own lawyer--that is, to delay the trial  until Hearst arrived or another lawyer  was appointed in his stead and prepared  to proceed as his advocate--then the  waiver was informed, and Robert cannot  complain that he was unrepresented even  momentarily.


34
Unfortunately the district court did not  make the essential inquiry at trial, and  in the post-verdict proceedings the  prosecutor chose to let the issue slide.  Counsel asked Robert: "Do you have an  understanding as to what would happen if  you didn't agree to these other lawyers  standing in for your case?" Robert  answered "No, sir." and the prosecutor  did not follow up by cross-examination.  Resources were at the prosecutor's  disposal. The district judge remarked  when denying Robert's motion for a new  trial that although Robert often had to  make do with a stand-in, on "other  occasions when Mr. Hearst believed that  he wasn't feeling well enough to carry  on, we recessed the trial. It was late in  the trial. At that point I was not going  to declare a mistrial with respect to Mr.  Patterson. I would rather have waited  until Mr. Hearst felt better, which is  exactly what we did." This implies that  Robert had actual knowledge of his option  to delay the trial until Hearst returned-  -though perhaps the fact that the judge  did not take this step until "late in the  trial" means that Robert was uninformed  when he consented earlier. But we need  not pursue this subject, because the  prosecutor did not pursue it. The United  States allowed Robert's answer to stand  unchallenged; we must assume that he did  not know his options.


35
To say that Robert had the right to  counsel does not necessarily mean that an  irresponsible lawyer (or the defendant's  ignorance of his entitlements) may bring  a complex trial to a halt or force a  severance. Hearst had been appointed, and  the district judge could have elected to  appoint a co-counsel or relieve him  altogether. Perhaps that is the best way  to understand what happened: the district  court appointed some of the other defense  lawyers as co-counsel for Robert. A  defendant could not block that step just  by saying that he preferred Hearst; when  a court appoints counsel, it need not  choose the lawyer the defendant prefers.  Morris v. Slappy, 461 U.S. 1 (1983). Once  again, however, the record does not  reveal information that is essential to  evaluating the propriety of appointing  co-counsel (if that is the best way to  understand matters). Other defendants'  lawyers could not represent Robert if  that would have created a conflict of  interest with their own clients. See  Wheat v. United States, 486 U.S. 153,  159-62 (1988). The district court did not  explore the question whether conflicts  existed or invite waivers (from Robert  and other defendants; all clients would  have to consent under the circumstances).  See United States v. Roth, 860 F.2d 1382  (7th Cir. 1988) (holding that defendants  may waive the entitlement to conflict-  free counsel, provided the waiver is  intelligent). Nor did the judge ask  whether the other lawyers were pursuing a  sensible defense strategy for Robert. If  to other defense lawyers "standing in"  for Hearst meant only defending their own  clients' interests and reporting to  Hearst at day's end what had transpired,  then again Robert was effectively  unrepresented.


36
According to the memorandum the United  States filed after oral argument, Robert  forfeited any entitlement to protest the  absence of an inquiry into conflicts (or  the way other lawyers understood their  obligation to protect Robert's interests)  by not presenting evidence on these  points at the hearing. That puts the  burden in the wrong place. A judge who  effectively appoints one lawyer to serve  two clients must initiate inquiry on his  own, see Russell, as the judge in this  trial did not. Belated inquiry could have  shown that the omission at trial was  harmless, because there was no conflict,  but the prosecutor did not raise the  subject at the hearing. Nor do we think  it possible to say that Robert forfeited  the entire subject--not only because  Hearst's absences were a major component  of Robert's motion for a new trial (which  should have alerted the prosecution to  the need to develop evidence about  possible conflicts) but also because the  United States did not argue forfeiture in  its appellate brief. It raised forfeiture  for the first time in the memorandum  submitted after argument, and by that  delay it forfeited any right to assert  Robert's potential forfeitures at an  earlier stage.


37
One final possibility requires brief  consideration. A defendant is entitled to  counsel only at critical stages in the  prosecution against him. If nothing that  occurred during Hearst's absences was  relevant to the charges against Robert,  then perhaps he has not suffered a loss  of counsel during a critical stage. Once  again, however, this possibility has been  forfeited by the United States--perhaps  because it is so obvious that all of the  evidence presented in a conspiracy  prosecution counts against every  defendant. We agree with the fifth  circuit's conclusion in Russell that when  the defendant's lawyer skips multiple  days of a trial at which his client is  accused of conspiring with other  defendants, the accused does not  effectively waive his right to counsel  (or consent to vicarious representation  by other defendants' lawyers), and the  judge does not take the steps necessary  to appoint replacement counsel or add co-  counsel, the judgment must be set aside  without any inquiry into prejudice.

IV

38
Tyrone Williams was acquitted of the  only firearms charge brought against him,  and he contends that this acquittal  perversely increased his sentence.  Calculated without regard to any firearms  adjustments, Williams' sentence would  have been in the range for offense level  41 and criminal history category VI. That  range is 360 months to life. Had he been  convicted of the weapons charge, a  minimum of 60 months (which must run  consecutively) would have been added, for  a final sentencing range of 420 months to  life. Because he was acquitted of "using  or carrying" a gun, however, the district  judge had to ask whether Williams or one  of his partners in crime possessed a gun,  a lower standard under U.S.S.G.  sec.2D1.1(b)(1) than Bailey sets for  conviction under sec.924. See United  States v. Carmack, 100 F.3d 1271, 1279-80  (7th Cir. 1996). Possession of a  dangerous weapon during the offense leads  to two extra levels, "unless it is  clearly improbable that the weapon was  connected with the offense." U.S.S.G.  sec.2D1.1 Application Note 3. The  district judge found by a preponderance  of the evidence that Williams and many  co-conspirators possessed firearms, and  Williams did not establish to the judge's  satisfaction that the guns were  unconnected to the offense. That finding  put Williams at offense level 43, and the  guideline "range" for that level has only  one entry: "life." Yet under U.S.S.G.  sec.2K2.4 Application Note 2, a  conviction on the sec.924(c) charge would  have precluded a two-level enhancement  under sec.2D1.1(b)(1), in order to avoid  double counting. This sets up Williams'  protest. What sense can it make to have a  sentencing range of 420 months to life  for a person convicted of using or  carrying a gun during and in relation to  a drug offense, and a mandatory sentence  of life if the person is acquitted of  that charge?


39
Perhaps this is an appearance without  substance. For many people, a sentence of  420 months (35 years) and a sentence of  life imprisonment come to the same thing,  given the defendant's age at the time of  conviction. For young defendants,  however, there may be a practical  difference when the criminal behavior  leads to a high offense level. Section  2K2.4 Application Note 2 establishes a  sensible rule for the vast majority of  defendants, because the mandatory five-  year-minimum for a violation of  sec.924(c) exceeds the effect of two  offense levels. But when the offense  level reaches 32 (at criminal history  level VI) a two-level increase can lead  to a more severe punishment than the  minimum possible sentence under  sec.924(c)(1).


40
The Constitution does not guarantee a  completely rational system of sentencing.  See, e.g., Chapman v. United States, 500  U.S. 453, 466-68 (1991); Neal v. United  States, 516 U.S. 284 (1996). Unlike the  situation in Chapman and Neal, however,  Williams has not been caught by a  statutory minimum sentence that causes a  less culpable person to be punished more  severely. His punishment depends wholly  on the Sentencing Guidelines, and  Congress has provided an escape hatch for  unusual situations: departure under 18  U.S.C. sec.3553(b). See Koon v. United  States, 518 U.S. 81 (1996). The  Sentencing Commission recognized that the  anti-double-counting norm could lead to  sentencing inversions--that is, to more  culpable persons receiving lower  sentences, see United States v. Brigham,  977 F.2d 317 (7th Cir. 1992)--and invited  departures by sec.2K2.4 Application Note  2, which we now set out in full:


41
Where a sentence under this section  is imposed in conjunction with a  sentence for an underlying offense,  any specific offense characteristic  for the possession, use, or  discharge of an explosive or firearm (e.g., sec.2B3.1(b)(2)(A)-(F)  (Robbery)) is not to be applied in  respect to the guideline for the  underlying offense.    In a few cases, the offense level  for the underlying offense  determined under the preceding  paragraph may result in a guideline  range that, when combined with the  mandatory consecutive sentence under  18 U.S.C. sec.844(h), sec.924(c), or  sec.929(a), produces a total maximum  penalty that is less than the  maximum of the guideline range that  would have resulted had there not  been a count of conviction under 18  U.S.C. sec.844(h), sec.924(c), or  sec.929(a) (i.e., the guideline  range that would have resulted if  the enhancements for possession,  use, or discharge of a firearm had  been applied). In such a case, an  upward departure may be warranted so  that the conviction under 18 U.S.C.  sec.844(h), sec.924(c), or  sec.929(a) does not result in a  decrease in the total punishment. An  upward departure under this  paragraph shall not exceed the  maximum of the guideline range that  would have resulted had there not  been a count of conviction under 18  U.S.C. sec.844(h), sec.924(c), or  sec.929(a).


42
If the district judge would have given  Williams a life sentence (one within the  level 41 range without need for  departure) had he been convicted of the  firearms count, then the acquittal has  not affected his sentence and he has no  complaint. Similarly, the judge had  discretion to avoid a sentencing  inversion by departing downward. If, say,  a conviction under sec.924(c) would have  led the judge to select a sentence of 420  months for Williams (the bottom of the  level 41 range, plus the consecutive 60  months), then perhaps the district court  could have justified a downward departure  to 400 months for simple possession (or  being accountable for confederates'  possession).


43
After reviewing the sentencing  proceedings, we are unsure whether the  district judge understood the extent of  his discretion under sec.3553(b). We  therefore remand Williams' sentence so  that the district judge may consider his  options. If the judge believes that life  imprisonment is the best punishment, one  he would have meted out without regard to  conviction under sec.924(c), then the  sentence stands. If the judge would have  given a lesser sentence for the  combination of a level 41 offense and a  sec.924(c) conviction, however, then the  judge should consider whether it is  appropriate to depart downward, so that  Williams' term falls in the range between  360 months' imprisonment and the sentence  the judge would have meted out had the  jury convicted Williams of the  sec.924(c)(1) charge. Because this is an  unusual case, the district judge has  discretion either way; but the record  must reveal that he understands and  exercises that discretion. When taking up  the issue a second time, the district  judge should think it through afresh,  rather than adopting a presumption in  favor of the existing sentence.


44
Other issues have been considered but do  not require discussion. The principal  omitted contention--that the kind and  quantity of drugs must be treated as  elements of the offense under 21 U.S.C.  sec.841 in light of Jones v. United  States, 526 U.S. 227 (1999)--has been  resolved by an opinion issued after the  oral argument of this case. See Jackson,  207 F.3d at 920-21. See also United  States v. Edwards, 105 F.3d 1179 (7th  Cir. 1997), affirmed, 523 U.S. 511  (1998). We cannot close, however, without  expressing our appreciation to  appellants' counsel for the care with  which they unraveled the threads of this  complex case and presented common issues  in a joint brief.


45
The conviction of Robert Patterson is  reversed, and his case is remanded for a  second trial if the United States chooses  to pursue that option. The conviction of  Tyrone Williams is affirmed, but we  vacate his sentence and remand for  resentencing. All other judgments are  affirmed.

