In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1150

United States of America,

Plaintiff-Appellee,

v.

Orpheus Huston,

Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 00-CR-152--J.P. Stadtmueller, Chief Judge.

Argued September 20, 2001--Decided February 20, 2002



  Before Ripple, Kanne, and Rovner, Circuit
Judges.

  Kanne, Circuit Judge. A jury convicted
Orpheus Huston of aiding and abetting in
the distribution of cocaine base ("crack
cocaine"). Huston appeals on the basis
that he was deprived of his Sixth
Amendment right to effective assistance
of counsel because the district court
failed to conduct a proper inquiry into
his request for new counsel. We affirm.

I.   History

  In late September of 1999, a registered
FBI informant, Albert Perkins, contacted
Dorrie Washington in an effort to
purchase a large quantity of crack
cocaine. While Washington did not have
any crack cocaine, she offered to
introduce Perkins to someone who did have
crack cocaine in exchange for an
"introduction fee." Washington also told
Perkins that the price for "an egg and a
half" of crack cocaine would be $6,500.
Later that day, Washington suggested that
Perkins meet Huston in order to purchase
the crack cocaine. Next, FBI agents made
arrangements with Perkins to conduct a
controlled purchase. Perkins drove to
Washington’s house, met Washington, and
together they drove to the Candyland
store at 3413 West North Avenue in
Milwaukee ("Candyland"). At Candyland,
Washington introduced Perkins to Huston,
the Candyland owner. Huston told Perkins
that he did not have any crack cocaine at
the time, and Perkins and Washington left
the store.

  Later that same night, Perkins placed a
phone call to Huston, which the FBI
recorded and monitored. During that call,
Perkins and Huston discussed the crack
cocaine purchase, and Huston stated that
he still did not have the crack cocaine
but that he and Perkins should meet the
next morning. The next day, FBI agents
again made arrangements with Perkins to
conduct a controlled purchase, but when
Perkins met Huston, Huston did not have
the crack cocaine. Over the next few
days, Perkins called Washington several
times in an effort to set up another
meeting with Huston.

  On the morning of September 28, 1999,
FBI Special Agents Gregory Spencer and
Mark Bowling met Perkins at a prearranged
location. Agents Spencer and Bowling
searched Perkins and his car and finding
neither drugs nor money, they gave
Perkins $6,610 in prerecorded money./1
Perkins, trailed by Agents Spencer and
Bowling, went directly to Washington’s
house to pick her up. Perkins and
Washington then drove to Candyland. At
approximately 11:30 a.m., Detective Kuhtz
of the Milwaukee County Sheriff’s
Department and Officer Matos of the City
of Milwaukee Police Department witnessed
Perkins and Washington enter Candyland.
Upon entering Candyland, Huston greeted
Perkins and directed him to a room in the
back of the store. All law enforcement
agents remained outside of Candyland
during the controlled purchase. Huston
and Perkins went into the back room while
Washington stayed at the front of the
store. In the back room, Huston pulled
out a plastic bag containing 248 grams of
crack cocaine from his desk. Huston then
handed the crack cocaine to Perkins, and
Perkins paid Huston $6,500. Huston left
the back room and met Washington at the
front of the store and gave her $110.

  At approximately 11:35 a.m., Detective
Kuhtz and Officer Matos witnessed Perkins
exit Candyland with the bag of crack
cocaine. Washington and Huston stayed at
Candyland until 11:45 a.m. Upon Perkins’s
departure, Agents Spencer and Bowling
resumed visual surveillance, and Perkins
drove directly from Candyland to the
predetermined rendezvous site. At the
rendezvous site, Perkins gave Agent
Spencer the plastic bag containing the
crack cocaine and Agent Spencer took
Perkins’s statement. Agent Bowling
searched Perkins and his car for a second
time and found neither drugs nor money.

  On July 21, 2000, an arrest warrant was
issued for Huston. Six days later, on
July 27, 2000, Huston retained attorney
James Toran to represent him. On August
8, 2000, Huston was indicted for aiding
and abetting in the distribution of crack
cocaine, in violation of 21 U.S.C. sec.
841(a)(1) and 18 U.S.C. sec. 2. On August
22, 2000, a superseding indictment added
Washington as a co-defendant. On August
25, 2000, both defendants were arraigned
and trial was set for October 23, 2000.
After being released on bail, Huston went
to Toran’s office and obtained his case
file./2

  On the morning of the joint trial, Toran
informed the court that Huston had not
returned the case file. Further, Toran
stated that he had not completely
reviewed the case file before Huston
obtained it. Toran explained to the court
that he had called the courtroom deputy
clerk on October 20, 2000, and told him
that he did not have the case file. Toran
stated that the deputy clerk then
suggested he obtain the case file from
his client and proceed to trial.

  The district court then asked Huston to
address any problem he had with Toran.
Huston stated that even though he and
Toran had spoken "numerous times," they
had been unable to meet. Huston stated
that he "d[id]n’t feel that [Toran was]
prepared to represent [him] in this case
at this time because [they had not]
discussed anything about the case."
Huston then asked the court for new
counsel or, in the alternative, for time
to review his case file with Toran. The
court inquired into the case file’s
location and Huston stated that he did
not bring the case file with him. The
court ordered Huston to retrieve the case
file immediately, and Huston left the
courthouse and returned forty-five
minutes later with the case file.

  Upon Huston’s return, the court denied
Huston’s request for new counsel and
noted that neither Huston nor Toran
raised any concern at the pretrial
conference the preceding week. Further,
the court acknowledged that Huston’s case
was straightforward and involved only one
discrete drug transaction. The court then
stated that opening statements would not
begin that day. The district court also
provided an eighteen-hour recess and a
conference room for Huston and Toran to
review the case file and prepare for
trial. Finally, the court asked Huston
and Toran if either of them had anything
else to address before adjourning for the
day. Toran stated that it was possible
that he would have to add one witness to
his witness list. Huston remained silent.

  Opening statements began the morning of
October 24, 2000. All testimony was
completed by that afternoon, and on
October 25, 2000, the jury found Huston
and Washington guilty. Huston did not
voice any complaint about Toran or his
representation on October 24 or 25.
Huston now appeals, contending that the
district court’s inquiry into his request
for new counsel was inadequate, and
therefore, his conviction should be
reversed. In the alternative, Huston
seeks a remand to determine whether
Toran’s representation was
constitutionally deficient.

II.   Analysis

  When a defendant has been given the
opportunity to explain the reasons behind
his request for new counsel, we review
the denial of that request for an abuse
of discretion. See United States v.
Bjorkman, 270 F.3d 482, 500 (7th Cir.
2001). As Huston concedes, the district
court permitted him to articulate his
concerns with Toran’s representation and
his reasons for seeking new counsel.
Therefore, our review is for abuse of
discretion. See id. To determine whether
a denial of a request for new counsel
constitutes an abuse of discretion, we
consider several factors, including (1)
the timeliness of the request, (2) the
adequacy of the court’s inquiry into the
defendant’s request, and (3) whether the
conflict between the defendant and his
counsel was so great that it resulted in
a total lack of communication and
prevented an adequate defense. See id.;
United States v. Zillges, 978 F.2d 369,
372 (7th Cir. 1992). Even if we find an
abuse of discretion, we will uphold the
district court’s decision to deny a
request for new counsel unless the
defendant establishes that he was
deprived of his Sixth Amendment right to
effective assistance of counsel. See
Bjorkman, 270 F.3d at 500.

  As Huston concedes, his request for new
counsel was not timely because it was
made the morning of trial. Cf. United
States v. Brown, 79 F.3d 1499, 1506 (7th
Cir. 1996) (holding request made two
months before trial timely); Zillges, 978
F.2d at 372 (one month). Our concern, of
course, with untimely requests for new
counsel is that they are nothing more
than tactics to manipulate or delay the
trial. See United States v. Golden, 102
F.3d 936, 941 (7th Cir. 1996). Huston
contends that even though his request was
untimely, there was no indication that
the request was a tactic to delay. We
disagree. At the pretrial conference the
week before trial at which both Toran and
Huston were present, Huston did not voice
any concern with Toran. Moreover,
although it is the basis for his
inadequate counsel claim, Huston failed
to bring the case file to that conference
or, indeed, to the trial itself. Huston’s
actions belie his contention that his
request for new counsel was genuine, and
it seems to us that the district court
could have dismissed his request outright
as untimely.

  In any event, we find that the district
court’s investigation into Huston’s
request was adequate. In Bjorkman, 270
F.3d at 501, the district court gave the
defendant an opportunity to fully express
each of his concerns regarding his trial
counsel. We noted that the court did not
interrupt the defendant at any point and
that when the defendant finished, the
court asked him if he had anything
further to say. See id. We found the
district court’s inquiry adequate because
the "court’s subsequent analysis
reveal[ed] that it listened to [the
defendant’s] concerns, and responded
thoughtfully and appropriately." Id. In
the present case, the district court gave
Huston an opportunity to explain the
basis for his request for new counsel.
Huston was very clear that he did not
feel that Toran was prepared to represent
him because, according to Huston, he and
Toran had not discussed his case
adequately. In articulating the basis of
his complaint, Huston stated that he
believed that Toran was not adequately
prepared because Huston possessed the
case file. The district court then
ordered Huston to obtain the case file
and give it to Toran, which Huston did.
Further, the district court provided an
eighteen-hour recess, and allowed Huston
and Toran to review the case file and
prepare for trial in a courthouse
conference room. As in Bjorkman, we find
that the district court listened to
Huston’s request and responded thoroughly
because the court directly addressed the
sole concern raised by Huston. The
district court also asked Huston and
Toran whether they had anything more to
address before adjourning for the day,
thus supporting our conclusion that the
district court’s inquiry was adequate.
See id.

  Finally, any difficulty between Toran
and Huston did not result in a total lack
of communication preventing an adequate
defense. See Zillges, 978 F.2d at 372. In
Brown, 79 F.3d at 1506-07, we noted that
even though the defendant and his
attorney did not get along and were often
"at odds," there was at least some
communication occurring between the two.
Further, we noted that the attorney had
done some pretrial preparation including
seeking additional witnesses and that the
record lacked any indication that there
were any attorney-client problems during
the trial. See id. at 1507. We therefore
held that "the evidence [did] not
establish a substantial breakdown in
attorney-client communications preventing
an adequate defense." Id. In Bjorkman,
270 F.3d at 508, the defendant’s request
for new counsel was denied and the
district court granted a thirty-five
minute recess in order for the defendant
and his attorney to discuss the case. In
finding that there was sufficient
communication between the parties, we
noted that the defendant and his attorney
had little difficulty communicating
during the recess and that the defendant
made no complaints regarding
communication after the recess ended. See
id. at 501. That the attorney conducted
vigorous witness examinations also
supported our conclusion there was
sufficient attorney-client communication.
See id.
  In the present case, Huston was free on
bond and he concedes that he and Toran
spoke "numerous times" prior to trial. It
is apparent that there had not been a
breakdown in communication between the
two. Moreover, the pre-trial record also
supports the conclusion that there was no
attorney-client breakdown because it
shows that Toran had read the police
report and was seeking witnesses to
support Huston’s case. See Brown, 79 F.3d
at 1507. Further, Huston and Toran had
over eighteen hours before the start of
the trial to discuss the case and Huston
never complained about his ability to
communicate with Toran during that time
or at any point subsequent to it. See
Bjorkman, 270 F.3d at 501 (holding that
no complaint after a thirty-five minute
recess supported denial of request for
new counsel). The record reveals that
Toran vigorously cross-examined
government witnesses and made compelling
arguments on behalf of Huston at trial,
and thus provides strong evidence that
Huston and Toran were able to communicate
sufficiently. See Bjorkman, 270 F.3d at
501. Therefore, the evidence fails to
establish that there existed a lack of
communication preventing an adequate
defense.

  In the end, the district court denied
Huston’s request because it believed that
the evidence fell far short of showing
that Huston and Toran were so unable to
communicate as to prevent an adequate
defense. The district court realized, and
Huston admitted, that the only concern
that Huston had with Toran was that Toran
had not completely examined the case
file. The district court granted Huston
and Toran over eighteen hours of recess
to review that file, which was more than
enough time considering the facts of the
case. Moreover, after having that time to
meet with Toran, Huston did not voice any
complaint regarding Toran’s level of
preparedness, and Toran presented a
vigorous defense on Huston’s behalf. We
thus find no abuse of discretion in the
district court’s denial of Huston’s
request for new counsel.

III.   Conclusion

  For the forgoing reasons, the conviction
of the defendant is AFFIRMED and the
request for remand is DENIED.
FOOTNOTES

/1 Perkins planned to give Huston $6,500 in exchange
for one-quarter kilogram of crack cocaine; Wash-
ington was to receive $110 for her introduction
fee.

/2 The record is not clear on what exact materials
were in the case file, the date Huston obtained
the case file, or who in Toran’s office gave the
case file to Huston.
