                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 03-3961
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                                v.


LOUMARD HARRIS,
                                           Defendant-Appellant.

                          ____________
        Appeal from the United States District Court for the
        Southern District of Indiana, Indianapolis Division.
        No. 02 CR 177—Larry J. McKinney, Chief Judge.
                          ____________
     ARGUED JUNE 1, 2004—DECIDED JANUARY 11, 2005
                     ____________




 Before EASTERBROOK, KANNE and ROVNER, Circuit
Judges.
  ROVNER, Circuit Judge. Loumard Harris was charged
with violating 18 U.S.C. § 922(g)(1), which prohibits felons
from possessing guns. His first trial ended in a hung jury,
but a jury convicted him at a second trial. Between the first
and second trials, Harris had a falling-out with his court-
appointed attorney and he asked for new counsel. The
district court declined his request. The details of the conflict
are not for the most part in the record of this direct appeal.
Nevertheless Harris appeals his conviction on the grounds
2                                                No. 03-3961

that (1) the district court erred in denying his request for
new counsel; (2) the denial resulted in ineffective assistance
of counsel; and (3) section 922(g)(1) is an unconstitutional
exercise of federal power over purely intrastate activities in
contravention of the Commerce Clause. Reversals of
convictions on direct appeal on the grounds of ineffective
assistance of counsel are exceedingly rare in any court, and
Judge Easterbrook noted at oral argument that none can be
found in this Circuit. Having thoroughly warned the
defendant and his lawyer of the steep uphill climb—a
vertical climb, really—that they would have to make, they
chose to go forward with this direct appeal even though its
failure would mean the claims could not be brought later
with a fully developed record in a petition for habeas
corpus. That consequence now comes to pass as we affirm
the judgment of the district court.


                             I.
  Harris continues to contest the government’s version of
the facts but the discrepancies will not make a difference to
the resolution of the appeal. The felon-in-possession charge
arose from a traffic altercation between Harris and David
Fry, an acquaintance. When the two encountered each other
on the road at 10 p.m. on March 30, 2002, they first ex-
changed heated words and then gunshots were fired. Fry
called the police, Harris left the scene and a car chase
ensued. Around this time, Officer Scott Childers was driv-
ing home from work. He was in uniform and in a marked
police car when he heard a report over his radio that shots
had been fired and that two vehicles were involved, ap-
proaching I-65 from I-70. Officer Childers then saw two
vehicles traveling north on I-65 at 70 miles per hour. He fell
in behind the gray Oldsmobile driven by Harris and ac-
tivated his emergency lights and siren. Harris accelerated
and then exited the expressway with Officer Childers in
No. 03-3961                                                   3

close pursuit. Officer Childers lost track of the other car, but
stayed with Harris. When Officer Childers was approxi-
mately one car length away, he saw Harris throw a gun out
the driver’s side window of the car as the car approached an
intersection. The pistol landed in the grass just off the
street and Officer Childers continued his pursuit of Harris.
Harris stopped his car a few blocks after exiting the ex-
pressway and fled on foot. When Officer Childers caught up
to Harris in the backyard of a house, the officer drew his
weapon and ordered Harris to the ground. In 10 to 15
seconds, Officers Huff and McElfresh arrived to assist him.
Harris admitted to the officers present that he had thrown
the gun out of the car window. Childers then drove back to
the intersection where he had seen Harris throw the gun
and retrieved a semi-automatic pistol.
   The gun had been manufactured in California and had
been sold to Tamika Jones in March 2001 by a federally
licensed firearms dealer. Several hours after Harris pitched
the gun from his car window, in the early hours of the morn-
ing on March 31, 2002, Jones called the police department
and reported the gun stolen, explaining that she noticed it
was missing earlier that day. Jones was coincidentally an
acquaintance of Harris, having known him for two or three
years prior to these events. At the first trial, Jones testified
that she did not mention Harris’s name to the police when
she made the report of a stolen gun that night. At the
second trial, she claimed to have reported to police that
Harris had been at her home the day she noticed the gun
was missing. Nevertheless, she testified that she had been
out shopping with her mother and a friend that day and
returned home to find Harris visiting. Harris then drove
Jones’s mother and friend to the mother’s home. Jones’s
mother reported that as she left the car, Harris confronted
a man she did not know. She later heard gunshots after she
entered her home.
4                                                    No. 03-3961

  The State of Indiana charged Harris with criminal reck-
lessness, resisting law enforcement and possession of a hand-
gun without a license. Harris entered a plea agreement to
resolve those charges. Subsequently, on November 6, 2002,
the federal government charged Harris with violating 18
U.S.C. § 922(g)(1), which criminalizes possession of a fire-
arm by a felon. Harris was arrested on December 3, 2002,
and on that same day, Federal Community Defender James
McKinley was appointed to represent him. On April 3, 2003,
another Federal Community Defender, Kimberly Robinson,
also entered an appearance on Harris’s behalf. Harris’s first
trial in early April 2003 ended in a hung jury and the
declaration of a mistrial on April 8, 2003. Harris’s defense
at that trial had been that Fry, not Harris, had tossed the
gun out of the car window. The case was set for retrial on
June 16.
  The record becomes very sketchy at this point but Harris
claims that between April 8 and June 16, he sent a number
of letters to the district court asking for a new lawyer.1 He
claims that McKinley tried to persuade him to enter into a
plea agreement and when he refused, the relationship
soured. The letters purportedly requesting new counsel are
not in the record and Harris speculates that the district
court discarded them. This is a curious claim because the



1
   More specifically, Harris claims that he began writing to the
district court after McKinley refused to take certain steps that
Harris asked of him. McKinley sent a letter to Harris on June 2
in response to Harris’s letters (to McKinley) of May 14 and 21,
explaining his disagreement with certain positions Harris wished
him to take. If McKinley’s letter marks the timing of his refusal,
then it may be more accurate to say that Harris wrote letters to
the district court between June 2 and June 14. Of course, because
none of those letters are in the record, we cannot determine when
or if Harris moved for new counsel prior to the start of the second
trial.
No. 03-3961                                                      5

district court appears to have retained every other letter
Harris sent, including one that he mailed before trial that
reached the court after the trial ended.2 R. 49. Of course, be-
cause Harris insisted on bringing his claims about McKin-
ley’s representation on direct appeal instead of in a collat-
eral proceeding, we have only his word about any of this. He
includes a copy of a June 2 letter he claims to have received
from McKinley but this letter is not necessarily admissible
evidence, and as far as we can tell, it was never evaluated
by a trier of fact. In any case, it does not mention Harris’s
desire to have a new attorney. In the end, the only record
evidence we have of Harris’s claim that he requested new
counsel is a colloquy between Harris and the court on June
16, the date his second trial was to begin. Because it is the
only record evidence and because the court’s handling of the
motion is the main issue on appeal, we repeat the brief
colloquy here in its entirety:
    Mr. McKinley:       Your Honor, Mr. Harris has asked to
                        address the Court.
    The Court:          All right.
    The Defendant: Okay, I got a letter from Mr. McKin-
                   ley in my case. I have issues to bring
                   up he never brought up. Every time I
                   ask him to do something it’s always
                   his best interest. No, sir, this is me.



2
  This letter is dated June 4, 2003 and is postmarked June 5,
2003. However, the envelope is stamped “postage due” and the
Clerk’s Office stamp on the envelope and letter indicate the letter
was received in that office on June 25, 2003. The letter, fashioned
as an affidavit, complains that defense counsel should ask for dis-
missal of the indictment and that “several other issues have also
gone unotice” [sic] but nowhere does Harris request that new
counsel be appointed or even hint that his relationship with his
lawyer is damaged beyond repair.
6                                                No. 03-3961

                     I’m facing 15 to life. This is in my best
                     interest right now. I got the letter there
                     sending over to me that he wasn’t
                     going to address issues and issues I
                     knew meant something to my case.
                     My case surrounded these issues. If—
                     they used it for the indictment, for
                     the grand jury, for the magistrate.
                     He’s telling me I can’t use it. That’s
                     violatin’ my constitutional right.
    The Court:       What is that?
    The Defendant:   The proper (sic) cause, the transcripts
                     from the detention hearing, the grand
                     jury transcripts, it’s everything.
    The Court:       You mean, you want those for your-
                     self, those transcripts?
    The Defendant: No, I got them for myself. I was
                   askin’ to bring it. He’s tellin’ me it’s
                   irrelevant to the cause right now.
                   One time he told me they don’t do
                   proper cause in federal court, then he
                   came back and contradicted and said
                   yes, they do. He’s not—he’s not— I’m
                   ready to go to trial but not with him.
    The Court:       You don’t get your choice of lawyers,
                     Mr. Harris. And Mr. McKinley is an
                     excellent lawyer. He works in our—
                     in and out this courthouse all the
                     time. I’ll deny your motion to remove
                     him as your counsel.
    The Defendant: Okay. You can say this because
                   you’re sittin’ there. This is my life.
    The Court:       Mr. Harris, if you have a problem—
                     after this case is over—with Mr. Mc-
No. 03-3961                                               7

                    Kinley, you can always raise that in
                    your appeal. But we’re going to go to
                    trial today.
   The Defendant: Sir, I’m sayin’ this don’t make sense.
   The Court:       This is the date that was set for trial.
                    You want to raise these issues, you—
   The Defendant: I wrote you letters. I sent you stuff
                  over here telling you about these
                  issue. I never got a response back. I
                  wrote him letters—
   The Court:       I can tell you this. The issues you
                    raised with me were not the kind of
                    issues that would lead me to conclude
                    that your lawyer was not being com-
                    petent in this case. When he tells you
                    there are things irrelevant, he’s prob-
                    ably right.
   The Defendant: I came here and look you right in the
                  eye to eye and felt you—I think
                  you’re guilty, get you 188 to 235 plea
                  agreement. How would you feel about
                  that situation?
   The Court:       Part of representation is trying to
                    work out pleas, Mr. Harris.
   The Defendant: 188 months, 235 months, that’s no
                  plea, that’s life.
   The Court:       Well, you turned it down.
   The Defendant: So you’re tellin’ me you all gonna
                  take me to trial?
   The Court:       I’m telling you we’re going to trial
                    today.
8                                                   No. 03-3961

    The Defendant: You got witnesses. I rather have her
                   represent me than him. I don’t want
                   this man as, as . . .
    The Court:          You’re ready for Kimberly Robinson
                        to represent you in this case? Well,
                        we’re going to trial with the two of
                        you in this case.
    Mr. McKinley:       Thank you, Your Honor.
    The Court:          You’re welcome. You want to bring
                        the government back in? I’ll step
                        down and you can bring in the jury.
R. 81, Tr. at 4-6.
   Interestingly, many of Harris’s subsequent letters and
motions portray his June 16 in-court request as his first
request for a new lawyer. See, e.g., R. 50 (asking the court
in a motion docketed July 17, 2003, to remove McKinley
from the remainder of the proceedings due to conflict and
stating, “The defendant bought [sic] this issue to The
Honorable Larry J. McKinney[’s] attention on June 16, 2003”
and “now I’m asking once more for James C. McKinley to be
removed.”); R. 52 (in a letter received July 21, 2003, stating,
“I’m writing to ask you once one [sic] as I did on 6-16-03 to
remove public defender James C. McKinley from my pro-
ceedings”); R. 55 (in a letter filed August 21, 2003 “for the
forth [sic] time asking to have James McKinley removed from
my proceedings”); R. 58 (stating in a September 8, 2003
filing that he tried to present issues of counsel’s ineffective-
ness on June 16, 2003).3 Nonetheless, Harris now claims


3
  Even after the court removed McKinley from participating in
post-trial proceedings, Harris continued to focus on the June 16
oral motion in his missives to the court, stating, “On June 16,
2003 I was present in your Honorable court. Where I came before
                                                    (continued...)
No. 03-3961                                                 9

that he brought the motion in advance of the trial date in
letters that were not kept by the trial court.
  Among Harris’s numerous problems with McKinley were
that (1) McKinley was too close to the government’s lawyers
and police witnesses and he refused to aggressively impeach
those witnesses; (2) McKinley refused to place a detective’s
probable cause affidavit into evidence and point out discrep-
ancies between the affidavit and current testimony of the
arresting officers; (3) McKinley refused to request that
jurors visit the exit ramp where the gun was found; and
finally, (4) McKinley declined to call Lakisha Vaughn, a
purported witness to Harris’s arrest who he claims would
dispute the officers’ testimony that he confessed to throwing
the gun from the window. Again, because the record is
undeveloped, we must point out that there is no evidence in
the record that McKinley had any close relationship with
the government’s lawyers and witnesses, and no evidence
that McKinley even knew about Lakisha Vaughn (not to
mention a complete lack of evidence regarding what
Vaughn would have said if called to testify). McKinley’s
purported June 2 letter to Harris is his best evidence that
McKinley refused to challenge the probable cause affidavit
and refused to request that the jury be taken to view the
scene of the crime.
  As we noted above, the district court denied Harris’s oral
motion for new counsel on the day the second trial began.
In addition to McKinley, Kimberly Robinson represented
Harris at the second trial. The jury convicted Harris this
time, after a trial in which the government concedes that a
witness who changed her story between trials was not



3
  (...continued)
you and ask[ed] to have my appoint[ed] counsel James C. McKin-
ley to remove [sic] from my proceedings due to conflict and
ineffectiveness.” R. 59. See also R. 60/61 and R. 78.
10                                                 No. 03-3961

impeached on that point. Harris, who had testified at his
first trial, did not testify at the second trial. As might be ex-
pected, there were other differences between the first and
second trials but none prove relevant to the issues here.
The court subsequently granted Harris’s renewed motion
for new counsel on September 5, 2003, removing McKinley
from participation in post-trial proceedings. Harris appeals.


                              II.
   On appeal, Harris argues that the district court abused
its discretion and thereby violated his Sixth Amendment
right to effective assistance of counsel when it denied his
motion for new counsel. He also challenges whether section
922(g) could be constitutionally applied to the facts of his
case where his possession of the gun did not affect inter-
state commerce. We will address his Sixth Amendment
claim in two parts, first considering whether the district
court abused its discretion in denying Harris’s motion for
new counsel and then addressing whether the denial of the
motion resulted in ineffective assistance of counsel. But
first we will turn to his section 922(g) claim, which is well-
settled in this jurisdiction.


                               A.
  Harris challenges his section 922(g) conviction on the
grounds that Congress may not constitutionally regulate his
wholly intrastate possession of a gun under the Commerce
Clause. He contends that the gun’s manufacture in another
state is an inadequate interstate connection under the
Supreme Court’s reasoning in United States v. Lopez, 514
U.S. 549 (1995) and Jones v. United States, 529 U.S. 848
(2000). We need not dwell on this issue for long because as
Harris concedes, we have already resolved this issue in
prior appeals and Harris offers us no compelling reason to
No. 03-3961                                                 11

change our prior rulings. See United States v. Thompson,
359 F.3d 470, 480 (7th Cir. 2004) (rejecting an identical
Commerce Clause claim based on Lopez and Jones and
collecting cases where we rejected similar or identical
claims); United States v. Harris, 325 F.3d 865, 873-74 (7th
Cir. 2003) (finding that Lopez and Jones did not implicitly
overrule Scarborough v. United States, 431 U.S. 563, 577
(1977), where the Supreme Court held that proof that a
firearm had previously crossed state lines was adequate to
show that possession of the gun was “in or affecting com-
merce”); United States v. Lemons, 302 F.3d 769, 771-72 (7th
Cir.), cert. denied, 537 U.S. 1049 (2002) (same); United
States v. Wesela, 223 F.3d 656, 659-60 (7th Cir. 2000), cert.
denied, 531 U.S. 1174 (2001) (finding that nothing in Jones
or Lopez casts doubt on the validity of section 922(g)). Harris
reports that he raised this argument in order to preserve it
in the event the law on this issue changes. He may consider
it preserved. We decline his invitation to change the law.


                              B.
  We next consider Harris’s ineffective assistance claim
based on the district court’s refusal to appoint new counsel
for the second trial. “If the defendant has been given an
opportunity to explain to the court the reasons behind his
request for substitute counsel, we review the denial of that
request only for an abuse of discretion.” United States v.
Bjorkman, 270 F.3d 482, 500 (7th Cir. 2001), cert. denied,
535 U.S. 1095 (2002). See also United States v. Brown, 79
F.3d 1499, 1505 (7th Cir.), cert. denied, 519 U.S. 875 (1996)
(choice of counsel rulings by the district court are reviewed
on appeal for abuse of discretion); United States v. Zillges,
978 F.2d 369, 371 (7th Cir. 1992) (provided the defendant
was afforded an opportunity to explain the reasons behind
his request, our review of the denial of a motion for substitu-
tion of counsel is reviewed for abuse of discretion). As the
12                                               No. 03-3961

transcript above demonstrates, McKinley brought the issue
to the court’s attention and a brief hearing was held outside
the presence of the government and the jury. At that time,
the district court solicited the reasons for Harris’s dissatis-
faction with McKinley and we therefore review the denial
of the motion for substitute counsel for abuse of discretion.
  In determining whether the district court abused its dis-
cretion in denying a motion for substitute counsel, we con-
sider a number of factors including the timeliness of the
motion, the adequacy of the court’s inquiry into the motion,
and whether the conflict was so great that it resulted in a
total lack of communication preventing an adequate defense.
Bjorkman, 270 F.3d at 500; Brown, 79 F.3d at 1505-06;
Zillges, 978 F.2d at 372. If we find an abuse of discretion,
we will nonetheless affirm the district court’s decision un-
less the defendant establishes that he was deprived of his
Sixth Amendment right to effective assistance of counsel.
Bjorkman, 270 F.3d at 500; Zillges, 978 F.2d at 372-73 (if a
defendant is still afforded adequate representation, an
erroneous denial of a motion for substitution is not prejudi-
cial and is therefore harmless). The Sixth Amendment right
to counsel includes the right to choice of counsel. Brown, 79
F.3d at 1505. “However, this right must be understood with
regard to its function in our constitutional scheme, espe-
cially where indigent defendants are concerned.” Brown, 79
F.3d at 1505.
     Thus, while the right to select and be represented by
     one’s preferred attorney is comprehended by the Sixth
     Amendment, the essential aim of the Amendment is
     to guarantee an effective advocate for each criminal
     defendant rather than to ensure that a defendant will
     inexorably be represented by the lawyer whom he prefers.
Wheat v. United States, 486 U.S. 153, 159 (1988). With
these standards in mind, we turn to the particulars of
Harris’s situation.
No. 03-3961                                                     13

   On this record, Harris’s timeliness claim could not be
weaker. Although he claims to have moved for new counsel
in letters sent to the court before the date of trial, the only
record evidence reveals that he first brought the motion for
substitution of counsel on the day his second trial was to
begin.4 As recounted above, his subsequent letters to the
court confirm that he first raised the motion on June 16,
moments before the jury was impaneled. The district court’s
remarks indicate a belief that Harris was bringing the
motion at that late date for the purpose of delay. Three
times the court informed Harris that “we’re going to trial
today.” R. 81, Tr. at 4-5. It is difficult to determine exactly
when the supposed rift formed and thus impossible to tell
if Harris could have brought the motion earlier. Harris
claims the rift formed when McKinley attempted to talk
him into a plea. Nothing in the record tells us when these
discussions regarding a plea took place. McKinley’s June 2
letter does not mention any discussion of a plea or any rift
between lawyer and client. The letter that Harris mailed to
the court on June 5 that reached the court (postage due) on
June 25 after the conclusion of the second trial makes no
mention of plea discussions or any rift between Harris and
McKinley. The letter simply states that Harris would like
to raise certain issues and has discussed these issues with
his lawyer. On this record, we can only conclude (as the
district court implicitly did) that the motion for new counsel
was untimely. See United States v. Wilks, 46 F.3d 640, 643
(7th Cir. 1995) (motion for new counsel untimely when not
raised prior to commencement of second trial). See also


4
  Harris argues that the district court acknowledged during the
colloquy receiving these letters. As we explain infra at 14-15, the
court’s comments can be construed many ways, and in any case,
the letters are not part of the record on appeal. On this undevel-
oped record, we have no way to verify the content of the letters. In
the absence of any evidence, we decline Harris’s invitation to
assume the letters contained requests for a new attorney.
14                                               No. 03-3961

United States v. Huston, 280 F.3d 1164, 1167 (7th Cir. 2002)
(affirming court’s denial of motion for new counsel where
defendant conceded that motion was untimely when made
on the morning of the trial, and commenting further that
lack of genuine motive combined with timing could have
resulted in outright dismissal of motion for untimeliness).
  We turn to the adequacy of the court’s inquiry into the
motion. We have reproduced the entire exchange between
Harris and the district court above. Although the colloquy
may not be a model of probing inquiry, the district court
elicited from Harris all the major reasons he sought new
counsel. Indeed, he makes no claim now that there were
additional reasons he wished to express but was prevented
from raising. The court gave him every opportunity to state
his reasons. He rests now on the rationales he raised on
June 16, namely (1) that McKinley was refusing to raise
certain legal issues that Harris believed had merit; and (2)
that Harris lost confidence in McKinley when McKinley en-
couraged him to accept a plea agreement, perhaps indi-
cating that McKinley did not believe in his client’s inno-
cence.
  Harris complains that the district court’s inquiry was
inadequate in part because the court ignored his letters.
Again, these letters are not part of the record in this direct
appeal and we cannot confirm their existence much less
their content. Harris characterizes the court’s remarks as
an acknowledgment of having received letters. The court’s
comments can be read many ways, however, and because
Harris has refused to take the issue up on collateral review,
we will never know what the district court meant when it
said, “The issues you raised with me were not the kind of
issues that would lead me to conclude that your lawyer was
not being competent in this case.” The court could have
meant the issues Harris raised seconds earlier, or in an
earlier in-court proceeding, or in one of the elusive letters
Harris now claims to have written. We will never know for
No. 03-3961                                                 15

certain, but the court did not clearly indicate it received any
letters, there are no pre-trial letters in the record (other
than as noted above), and we cannot conclude that the court
ignored letters that on this record do not exist.
  Harris next compares his circumstances to those in
Zillges, where we found the court’s inquiry inadequate. We
found the inquiry inadequate there because “[a]lthough the
district court did engage in an initial inquiry into Zillges’s
complaint, the court sought to elicit a general expression of
satisfaction on the part of Zillges with his trial counsel
rather than reasons for his dissatisfaction with counsel.”
Here the court elicited the reasons for Harris’s dissatisfac-
tion. Harris does not claim that he had additional reasons
that did not come to light, only that the court should have
delved further into the reasons and should have questioned
McKinley as well. Ideally, the court should have questioned
Harris’s lawyer to determine the existence and extent of the
alleged rift. Zillges seems to require as much. Our reading
of the colloquy reveals that the court uncovered the reasons
for Harris’s dissatisfaction and then halted the discussion
for another reason. Harris told the court he was ready to go
to trial with Kimberly Robinson, the other attorney who
was representing him. The court determined that the trial
would therefore go forward with Harris being represented
by both McKinley and Robinson. This shift in the court’s
attention is more appropriately addressed below in our
consideration of prejudice. We need not decide in the
interim whether the court should have inquired further into
the breakdown in the lawyer-client relationship at that
point in time. We thus decline to find whether the inquiry
was inadequate.
   The final factor is whether the conflict was so great that
it resulted in a total lack of communication preventing an
adequate defense. On this point, Harris concedes the record
is nearly devoid of evidence but he argues that the lack of
evidence should not be held against him because it was the
16                                                No. 03-3961

result of an inadequate inquiry by the district court. Again,
although the inquiry was not ideal, it did reveal that Harris
lost trust in McKinley because McKinley seemed to believe
that Harris was guilty and should take a plea agreement.
Nothing in the record specifically addresses the communica-
tion between Harris and McKinley at the second trial. We
know from McKinley’s June 2 letter that Harris and
McKinley corresponded between the first and second trials
and also met in person to discuss the second trial. The
record also reveals that Harris and McKinley discussed
whether Harris would testify at the second trial as he had
done at the first. The pre-trial meetings and correspondence
combined with the discussion about testifying belie the
claim that communication was so lacking that McKinley
was unable to prepare an adequate defense. Note that this
was the second trial of the same matter and that the
defense McKinley presented at the first trial resulted in a
hung jury. Ideally, under Zillges, the district court should
have questioned McKinley on this point, but again, we need
not reach this issue because we can resolve the case on the
prejudice issue.
  As we noted above, even if the district court abused its
discretion in denying the motion for new counsel, we will
nonetheless affirm the district court’s decision unless the
defendant establishes that he was deprived of his Sixth
Amendment right to effective assistance of counsel.
Bjorkman, 270 F.3d at 500; Zillges, 978 F.2d at 372-73.
Moreover, “the essential aim of the Amendment is to guar-
antee an effective advocate for each criminal defendant
rather than to ensure that a defendant will inexorably be
represented by the lawyer whom he prefers.” Wheat, 486
U.S. at 159; Brown, 79 F.3d at 1505. On this point, Harris
loses his appeal.5


5
  At least in part, Harris was represented by a lawyer of his
choice, Kimberly Robinson. Robinson was able and willing to par-
                                                 (continued...)
No. 03-3961                                                     17

  In order to succeed on a claim of attorney ineffectiveness,
Harris must demonstrate both that his counsel’s conduct
fell below an objective standard of reasonableness and that
his counsel’s sub-standard performance prejudiced him.
Hampton v. Leibach, 347 F.3d 219, 246 (7th Cir. 2003) (cit-
ing Strickland v. Washington, 466 U.S. 668, 687 (1984)). In
order to satisfy the first prong of the Strickland test, Harris
must show that his attorney’s “representation fell below an
objective standard of reasonableness.” Strickland, 466 U.S.
at 687-88. See also Bruce v. United States, 256 F.3d 592,
597 (7th Cir. 2001) (to prevail on performance prong of an
ineffective assistance claim, defendant must show that
counsel’s deficient performance fell below an objective
standard of reasonable competence); Zillges, 978 F.2d at
373 (to meet first part of ineffective assistance claim,
defendant must demonstrate that the performance of his
attorney was not within the range of competence demanded
of attorneys in criminal cases). In assessing the adequacy of
counsel’s performance, the court’s scrutiny must be highly
deferential, allowing ample room for differences of profes-
sional opinion among attorneys as to how one might best
represent the defendant. Hampton, 347 F.3d at 246; United
States v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995), cert.
denied, 516 U.S. 1061 (1996) (because counsel is presumed
effective, a party bears a heavy burden in making out a


5
   (...continued)
ticipate in the proceedings. She appears to have cross-examined
at least two government witnesses and otherwise participated in
the trial. Harris has not complained at all about Robinson’s per-
formance at or before trial. She was “an effective advocate” and
was also a lawyer with whom Harris was willing to go to trial. We
will not rely solely on her participation in the trial to find that
Harris’s claim fails because her presence may not have amelio-
rated the prejudice of any ineffective assistance by her co-counsel
McKinley. For that reason, we will consider fully Harris’s com-
plaints about McKinley.
18                                              No. 03-3961

winning claim on ineffective assistance). The prejudice
prong is met if a defendant can show that, but for counsel’s
unprofessional errors, there is a reasonable probability that
the result of the proceeding would have been different.
Hampton, 347 F.3d at 246; Trevino, 60 F.3d at 338 (after
the defendant directs the appellate court to specific acts or
omissions making up the ineffective assistance claim, we
must determine whether, in light of all the circumstances,
the alleged acts or omissions were outside the wide range of
professionally competent assistance).
  Harris’s complaints about McKinley’s performance at the
second trial are as follows: (1) McKinley failed to impeach
Officer Emily Huff, Tamika Jones and David Fry with what
he considered to be prior inconsistent testimony; (2)
McKinley failed to call additional potentially exonerating
witnesses (he identifies only one in his brief—Lakisha
Vaughn); and (3) McKinley refused to request that the jury
visit the I-65 exit ramp where the gun was ejected from the
window of a car. We can address the last two points very
quickly. Harris does not even attempt to demonstrate the
value of having the jury visit the exit ramp, much less
demonstrate the prejudice he suffered when McKinley de-
clined to arrange such a visit. The jury viewed three photo-
graphs, a diagram and a map of the exit ramp. Gov’t Ex. 16;
Defendant’s Exs. A, B, C and D. Harris does not explain
what additional information could be gleaned from a
personal visit to the scene much less how the absence of
that information prejudiced his case. As for Lakisha Vaughn,
on this record we are unable to determine who she is or
what her testimony would have been. Needless to say, we
cannot determine the value of this alleged testimony or the
prejudice caused by its absence. Moreover, we have no idea
why McKinley chose not to pursue Vaughn as a witness.
The record is silent and we decline to fill in the blanks
No. 03-3961                                                     19

based solely on Harris’s representations in his briefs.6 See
United States v. Farr, 297 F.3d 651, 658-59 (7th Cir. 2002)
(a defendant is unable to demonstrate that his lawyer’s
failure to interview certain witnesses prejudiced him when
the record is devoid of evidence on the value of the witness’s
testimony because the defendant brought his ineffective
assistance claim on direct appeal).
  We turn to the impeachment issues. Recall that Officer
Huff arrived on the scene after Officer Childers cornered
Harris in a backyard following a foot chase. Huff testified
consistently at both trials that Harris spontaneously ad-
mitted to the officers present that he had thrown the gun
out of his car window. Harris’s complaints about changes in
Officer Huff’s testimony between the first and second trial
involve such trivial and collateral matters that we can
imagine any number of strategic reasons why McKinley did
not try to “impeach” Huff on these matters. His failure to do
so did not amount to ineffective assistance. Harris’s prob-
lems with David Fry’s testimony are no more significant.
The only two discrepancies in Fry’s June testimony as
compared to his April testimony are that (1) in June, he
testified there was a woman in the car with him during the
chase, but in April he made no such claim; and (2) in April,
he claimed to have pulled over to the right side of the ramp
as he exited I-65 so that Childers could pass and in June he
claimed to have pulled over to the left. Again, these matters
are both trivial and collateral to the matter being tried. We
can think of myriad reasons why McKinley did not try to


6
  Harris also complains about McKinley’s failure to impeach
Detective Paul Arkins regarding representations he made in the
probable cause affidavit here. At trial, Arkins testified only re-
garding Harris’s prior felony conviction. The information contained
in the probable cause affidavit was based on oral or written reports
from other officers. Attempting to impeach Arkins on these issues
would not have changed the outcome of the trial.
20                                              No. 03-3961

“impeach” Fry on whether he pulled left or right. He had
already impeached Fry quite effectively with two prior
convictions, one for possession of cocaine and the other for
assault and battery. He also pointed out to the jury that
because Fry was a convicted felon, he could not legally
possess a gun and thus had a motive to lie about who
ejected a gun onto the shoulder of the exit ramp. Any
failure to impeach Fry on these trivial matters did not con-
stitute ineffective assistance. See United States v. Rezin,
322 F.3d 443, 446 (7th Cir. 2003) (there is a tactical reason
not to make weak arguments because they distract the
court from stronger arguments); Trevino, 60 F.3d at 339
(failure to quibble with fingerprint expert on trivial points
regarding methodology was not ineffective assistance when
counsel pursued a more effective path of questioning about
the absence of fingerprints on certain items and the tendency
of prints to remain visible long after an item is touched).
  Finally, we consider the testimony of Tamika Jones, the
owner of the firearm who was an acquaintance of Harris’s.
In the first trial, Jones was asked whether her mother and
Tim Gray were at her house on March 30. She affirmed that
they were present. She was not asked at the first trial if
Harris was also present that day. In June, she added that
Harris had also been to her home the day she reported the
gun missing. This additional testimony was not inconsistent
with her April testimony but simply added to it. In June,
Jones’s mother corroborated this fact when she testified
that she too had seen Harris at Jones’s house that day and
that he had given her (the mother) a ride home. There was
no need for McKinley to point out this imagined inconsis-
tency to the jury. The government concedes there was one
change in Tamika Jones’s testimony between April and
June. In April, she testified that when the police came to
take the report about her missing gun, she did not mention
to them that Harris had been present in her home that day.
At the June trial, she testified that she did tell the police
No. 03-3961                                                 21

officers taking the report that Harris had been in her home
that day. The government argues that impeaching Jones on
this point would have little impact on the outcome of the
trial and we tend to agree. Harris does not deny that he was
an acquaintance of Jones and does not challenge her
mother’s testimony placing him at the house the evening
before she reported the gun missing. To find Harris not
guilty, the jury would have had to overlook an incredible
coincidence that the gun found on the side of the road after
a car chase involving Harris belonged to a friend who
reported that gun missing hours after Harris’s arrest.
Perhaps McKinley did not impeach Jones on this point
because he did not want to dwell on a witness who brought
forward this damning coincidence. Considering the totality
of evidence against Harris as well as the very able cross-
examinations conducted by McKinley, we cannot say that
failing to impeach Jones on this point amounted to ineffec-
tive assistance of counsel. In none of these instances can we
find a reasonable probability that the result of the pro-
ceeding would have been different if McKinley had taken
the actions Harris wished him to take.


                             III.
  We cautioned Harris’s counsel at oral argument against
raising a claim of ineffective assistance on direct appeal
rather than bringing it on collateral review where a com-
plete record can be made to support the claim. Each of the
judges on the panel cautioned counsel on the perils of going
forward with the claim at this stage of the appeals process,
especially in light of this Court’s history of declining to
reverse convictions in these circumstances. See Trevino, 60
F.3d at 339 (noting that, as of the date of that opinion, this
Court had never reversed a conviction on direct appeal
because of ineffective assistance of counsel). The difficulties
of proceeding with an ineffective assistance claim on direct
22                                               No. 03-3961

appeal are well documented. See Farr, 297 F.3d at 657
(ineffective assistance claims are best raised in motions for
habeas corpus rather than direct appeal because such claims
are unlikely to find any factual support in the trial record);
United States v. Hall, 212 F.3d 1016, 1021 (7th Cir. 2000)
(ineffective assistance claims on direct appeal are generally
frowned upon because they involve inquiries into facts not
usually found in the trial record such as an attorney’s trial
strategies); United States v. Godwin, 202 F.3d 969, 973 (7th
Cir.), cert. denied, 529 U.S. 1138 (2000) (because appellate
inquiry must be confined to record as it stands, direct
appeals of ineffective assistance claims are invariably
doomed); Trevino, 60 F.3d at 338 (direct review of ineffective
assistance claims is difficult because they require inquiry
into motivation behind attorney’s strategy which in turn
requires inquiry into facts that are not part of the trial
record); United States v. Boyles, 57 F.3d 535, 550 (7th Cir.
1995) (direct review of ineffective assistance claims inappro-
priate because of inadequate development of record); United
States v. Davenport, 986 F.2d 1047, 1050 (7th Cir. 1993) (“a
defendant who presents an ineffective-assistance claim for
the first time on direct appeal has little to gain and every-
thing to lose”). Yet even after our warnings in these cases,
claimants continued to raise ineffective assistance claims on
direct appeal, for a time out of concern that they might
procedurally default the claim by not raising it at the
earliest opportunity.
  The Supreme Court removed that worry recently.
Massaro v. United States, 538 U.S. 500, 123 S. Ct. 1690
(2003). The Court recognized that “[w]hen an ineffective-
assistance claim is brought on direct appeal, appellate
counsel and the court must proceed on a trial record not
developed precisely for the object of litigating or preserving
the claim and thus often incomplete or inadequate for this
purpose.” Massaro, 538 U.S. at 504-05, 123 S. Ct. at 1694.
The Court noted that for an error of commission, an
No. 03-3961                                                    23

appellate court will have “no way of knowing whether a
seemingly unusual or misguided action by counsel had a
sound strategic motive or was taken because counsel’s al-
ternatives were even worse.” 538 U.S. at 505, 123 S. Ct. at
1694. Moreover, the “trial record may contain no evidence
of alleged errors of omission, much less the reasons under-
lying them.” 538 U.S. at 505, 123 S. Ct. at 1694. And with-
out a more developed record, an appellate court may not be
able to determine whether an alleged error (of commission
or omission) was prejudicial. 538 U.S. at 505, 123 S. Ct. at
1694. For this reason, the Supreme Court set aside the usual
rules of procedural default and held that an ineffective
assistance of counsel claim may be brought in a collateral
proceeding under section 2255 whether or not the petitioner
could have raised the claim on direct appeal. Massaro, 538
U.S. at 504, 123 S. Ct. at 1694. After Massaro, only the
rarest and most patently egregious of ineffective assistance
claims are appropriately brought on direct appeal because
there is no risk to delaying until a fully developed record is
made.7 Harris’s complaint about McKinley does not come
even close to qualifying for this aggressive treatment.
  The danger of bringing the claim too soon should be ob-
vious. We note the downside here for completeness. Once
the claim has been rejected on direct appeal, that decision
will be binding on the district court through the law of the
case doctrine. Trevino, 60 F.3d at 338; United States v.
South, 28 F.3d 619, 629 (7th Cir. 1994). See also Harris v.
United States, 366 F.3d 593, 595 (7th Cir. 2004) (appellate
court’s rejection of defendant’s ineffective assistance claim
on direct appeal is binding on post-conviction review). That


7
  We would not paternalistically prohibit defendants and their
lawyers from bringing these claims on direct appeal. Conceivably,
there might be a case where the trial lawyer’s incompetence and
the prejudice to the defendant is apparent on the face of the black
and white record.
24                                                No. 03-3961

leaves the defendant with the unenviable task of convincing
a district court to disregard our prior ruling. Trevino, 60
F.3d at 338; South, 28 F.3d at 629. No amount of later fact-
finding will be able to repair the damage that is done when
we are forced to rule prematurely on an ineffective assis-
tance claim.
  Mindful of the permanent effect of forcing our hand at
this stage of the proceedings, and not wishing to pressure
counsel into making a hasty decision about whether and
how to proceed, we allowed counsel a week to consult with
his client and inform the court whether he wished to with-
draw the appeal. The reply came shortly:
     Loumard Harris wishes to continue his prosecution
     of this appeal. He does so with the knowledge that an
     adverse decision on this appeal may prejudice future
     efforts to raise his claims in a subsequent proceeding.
     However, Mr. Harris believes that the record on this
     appeal is sufficient to demonstrate both: (1) the objec-
     tive unreasonableness of his counsel’s performance; and
     (2) that he was prejudiced by his counsel’s failures. . . .
     To the extent this Court disagrees, and believes there
     are holes in the evidentiary record that prevent it from
     properly considering his claims, Harris submits the
     proper course of action is to remand the case to the
     District Court with instructions to conduct an eviden-
     tiary hearing that will permit the compilation of a
     sufficient record.
Appellant Loumard Harris’s Supplemental Submission, at
1-2 (“Supplemental Submission”).
  Harris clarified in his Supplemental Submission that he
believes remand is appropriate both to obtain a proper hear-
ing on his motion for new counsel and to make a record on
his claim for ineffective assistance. See Supplemental
Submission at 2. These requests for remand in the
Supplemental Submission were the first time in the appeal
No. 03-3961                                                25

that Harris requested remand for evidentiary hearings.
Prior to this time, he simply implored us to construe the
facts in his favor in the absence of any evidence supporting
his claims, in essence to take his word for it. These requests
for remand come absurdly late in the appeals process and
we will consider them waived because they were not raised
in the opening brief (or even in the reply brief). See United
States v. Matchopatow, 259 F.3d 847, 851 (7th Cir. 2001)
(arguments not raised until the reply brief are waived);
Godwin, 202 F.3d at 973 (this Court’s inquiry into the
ineffective assistance claim must be confined to facts that
appear in the record as it stands at the time of the appeal).
Although he mentions in his opening brief that the district
court erroneously denied his pro se post-trial motion for a
new trial, his brief contains no argument and no citation to
any case law on this point. At no time does he argue that
the court erred in denying him an evidentiary hearing on
this pro se motion. He focuses his briefs entirely on the
district court’s purported abuse of discretion in denying his
motion for new counsel which, he argues in turn, denied
him effective assistance of counsel.
  If Harris wanted to build a record, he should have taken
our very strong hints and withdrawn his claim for inef-
fective assistance of counsel so that he could pursue the
matter in a collateral proceeding. He declined our invitation
and he is left with the trial record as the only source of evi-
dence in his appeal. To the gaps we have already pointed
out, we add the following partial list of things we will never
know because Harris chose this ill-advised path: (1)
whether McKinley had any strategic reasons for the course
of action he took at trial; (2) whether Robinson concurred in
McKinley’s decisions; (3) whether Harris really requested
new counsel before the start of the second trial in the
mysteriously missing letters; (4) whether McKinley pursued
an investigation into evidence that could have been offered
by Lakisha Vaughn; and (5) what Vaughn would have said
26                                              No. 03-3961

had she been called to testify at trial. Because Harris chose
to bring the claim on direct appeal and because he did not
request a timely remand for fact- findings, these gaps in the
record are his own failing. Given that Harris is unable to
demonstrate on this record that he was deprived of the
effective assistance of counsel, we hold that Harris was not
prejudiced by any error in the denial of the motion for new
counsel.


                            IV.
  After the court heard oral argument in this case, Harris
requested leave to file a supplemental brief to address the
impact of Blakely v. Washington, 124 S. Ct. 2531 (2004) and
United States v. Booker, 375 F.3d 508 (7th Cir. 2004), on his
sentence. We granted leave and invited the government to
respond. In his supplemental brief, Harris argues that the
Sentencing Guidelines are unconstitutional in toto, and that
he was prejudiced by the court’s application of the Guide-
lines to his conviction. He requests that we vacate his
sentence and remand to the district court to either (1) re-
calculate his sentence in a manner consistent with Blakely;
(2) select an alternative sentence not based on the Guide-
lines; or (3) allow the parties an opportunity to address the
constitutionality of the Guidelines as a whole. In response,
the government expresses its disagreement with our
decision in Booker, but argues that, in the end, Blakely and
Booker do not apply to Harris’s sentence. According to the
government, Harris’s sentence was increased based solely
on his uncontested prior criminal convictions under
U.S.S.G. § 4B1.4(b)(3)(B), the career offender provision. The
government contends that Apprendi v. New Jersey, 530 U.S.
466 (2000), explicitly excluded prior convictions from its
holding that a jury must decide any fact that increases the
statutory maximum sentence. Because Blakely and Booker
depend on Apprendi, the government reasons, there was no
No. 03-3961                                                 27

need to plead the fact of prior convictions and prove those
convictions to the jury beyond a reasonable doubt.
   We recently addressed this same scenario in United
States v. Pittman, 388 F.3d 1104, 1108-10 (7th Cir. 2004).
We noted that prior to Apprendi or Blakely, the Supreme
Court held that prior felony convictions were sentencing
factors that need not be charged in an indictment nor proven
beyond a reasonable doubt because they are not elements of
the charged offense. See Almendarez-Torres v. United
States, 523 U.S. 224, 244 (1998). Because neither Apprendi
nor Blakely overruled Almendarez-Torres, we held that the
district court did not err in considering prior felony con-
victions when calculating the defendant’s sentence. Pittman,
388 F.3d at 1109. That rule applies here as well. Harris was
sentenced pursuant to the career offender provision of the
Guidelines. He did not object to the criminal history in-
formation compiled by the probation office. See Sentencing
Tr. at 5, 7. Indeed, his lawyer affirmatively accepted the
calculation. See Sentencing Tr. at 7 (“Clearly, the criminal
history category is there. There is no dispute over that.”). In
light of our holding in Pittman, Harris’s challenge to his
sentence fails.
                                                   AFFIRMED.
28                                        No. 03-3961

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—1-11-05
