                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-1558

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                                v.

M ONTE S. G EARHART,
                                            Defendant-Appellant.


           Appeal from the United States District Court
                for the Southern District of Illinois.
           No. 06-CR-40004-JPG—J. Phil Gilbert, Judge.



      A RGUED A PRIL 13, 2009—D ECIDED A UGUST 6, 2009




 Before C UDAHY, P OSNER, and T INDER, Circuit Judges.
  C UDAHY, Circuit Judge. Monte Gearhart was convicted
of conspiracy to manufacture and distribute metham-
phetamine. He appeals his conviction, arguing that the
delay between indictment and trial violated his
statutory and constitutional right to a speedy trial, and
that he was deprived of his Sixth Amendment right to
2                                                  No. 08-1558

counsel.1 We affirm the judgment of conviction and
sentence.


                    I. BACKGROUND
   From 2002 to 2006, Monte Gearhart and a number of
his acquaintances participated in a conspiracy to manu-
facture, and distribute methamphetamine in southern
Illinois. The group cooked methamphetamine in Gearhart’s
home and at the homes of his co-defendants and then
used, bartered and sold the drugs they produced.
  In January 2006, Gearhart was charged with conspiracy
to manufacture and distribute methamphetamine in
violation of 21 U.S.C. §§ 841, 846. Five co-defendants were
eventually charged along with him. Each of Gearhart’s co-
defendants ultimately pleaded guilty and testified against
him. Gearhart himself was tried and found guilty in
October 2007, twenty months after he was indicted.
  The principal reason for the delay between indictment
and trial was that Gearhart and his co-defendants filed
seventeen motions to postpone the trial. Gearhart’s own


1
   Gearhart also argues that the sentence violates Apprendi v.
New Jersey, 530 U.S. 466 (2000), because it was based on conduct
that was not submitted to the jury and proven beyond a reason-
able doubt. We have repeatedly rejected such arguments, see,
e.g., United States v. Johnson, 335 F.3d 589, 591-92 (7th Cir.
2003), and therefore reject Gearhart’s Apprendi claim without
discussion. We note that Gearhart has preserved this claim
for certiorari.
No. 08-1558                                                   3

counsel filed nine such motions. Further, Gearhart did not
object to any of his co-defendants’ motions or move to
dismiss the indictment on speedy trial grounds.
   The trial was further delayed when the government
filed a motion to disqualify Gearhart’s attorney, Burton
Shostak. The government indicated that it had learned
that a former cellmate of Gearhart’s named Terry Rogers
had relevant information to its case and that it wanted
Rogers to testify. Rogers was represented by Grant
Shostak, who, in addition to being Burton’s son and law
partner, had also represented Gearhart himself at his
detention hearing. After receiving notice of the govern-
ment’s motion, Burton Shostak filed a motion to with-
draw, stating:
   I had no alternative but to file a motion [to withdraw].
   I will tell you it is not a heartfelt motion that I filed.
   I would hope that you’d overrule it. I think that the
   actions in this case by the government are despicable.
   Monte has been in jail for over a year and a half. If you
   appoint new counsel . . . which I am assuming you
   will do, he’s got to start all over . . . . And I just wanted
   the Court to know my feelings on the motion. And
   that while I have filed the motion, I want the Court to
   understand that I have to file it because of the way
   things look and not truly because of the way things are.
Despite Shostak’s protest, the district court granted both
parties’ motions.
  A new attorney was appointed, and Gearhart’s trial
began six weeks later in October 2007. The government
4                                               No. 08-1558

produced multiple witnesses who testified that Gearhart
used, dealt and manufactured methamphetamine. Terry
Rogers testified that when he shared a cell with Gearhart,
Gearhart admitted that he and a co-defendant “had dealt
[drugs] with each other several times.”
   The jury found Gearhart guilty and returned a special
verdict finding that the conspiracy involved 500 grams or
more of methamphetamine. The district court, in turn,
found that the conspiracy involved between 1.5 and
5 kilograms of methamphetamine. Based on his adjusted
offense level of 43 and his criminal history category of
II, Gearhart was sentenced to life in prison.


                    II. DISCUSSION
    A. Speedy Trial Claims
  Gearhart’s principal argument is that the twenty-
month delay between indictment and trial violated both
his statutory and constitutional right to a speedy trial. The
Speedy Trial Act, 18 U.S.C. §§ 3161, et seq., requires
that a federal criminal defendant be brought to trial
within 70 days of the filing of the indictment. 18 U.S.C.
§ 3167(c)(1). However, the Act also provides that a defen-
dant waives his rights under the statute if he does not
move to dismiss the indictment. 18 U.S.C. § 3162(a)(2).
Accordingly, every circuit to consider the issue has
held that the failure to move for dismissal under the act
constitutes a waiver, not merely a forefeiture. United
States v. Morgan, 384 F.3d 439, 442 (7th Cir. 2004) (citing
cases). Gearhart did not move for dismissal below; thus,
No. 08-1558                                                   5

his statutory speedy trial claim is not preserved for ap-
pellate review.2
   Gearhart also argues that the delay violated his Sixth
Amendment right to a speedy trial. The constitutional
right to a speedy trial is both narrower and broader than
the corresponding statutory right. It is narrower because
it protects only against delays that result in prejudice;
but it is broader because the Constitution protects against
prejudicial delay regardless of whether a defendant can
show a violation of the Act. See, e.g., United States v.
Dessesaure, 556 F.3d 83, 86 (1st Cir. 2009) (per curiam).
Further, unlike a statutory speedy trial claim, a constitu-
tional claim can be reviewed for plain error even where
it was not raised below. See, e.g., United States v. Oriedo,
498 F.3d 593, 597 n.2 (7th Cir. 2007).
  We evaluate constitutional speedy trial challenges
based on a four-part test: (1) whether the delay was
uncommonly long, (2) whether the government or the
defendant is more to blame for the delay, (3) whether the
defendant asserted his right to a speedy trial in due



2
  Gearhart argues Seventh Circuit precedent permits us to
review statutory violations that were not objected to below. It
does not. “The Act explicitly provides that a defendant’s
failure to move to dismiss the indictment constitutes a
waiver—not a forfeiture—of his rights under the Act, 18 U.S.C.
§ 3162(a)(2), and we may not disregard this provision.”
Morgan, 384 F.3d at 443; see also United States v. Broadnax, 536
F.3d 695, 698-99 (7th Cir. 2008). Counsel’s suggestion to the
contrary is meritless.
6                                                 No. 08-1558

course and (4) whether the defendant suffered prejudice
as a result of the delay. Doggett v. United States, 505
U.S. 647, 651-52 (1992); United States v. White, 443 F.3d 582,
589-90 (7th Cir. 2006).
  In the present case, Gearhart was indicted on January 19,
2006, and he was not tried until October 15, 2007. However,
while this twenty-month delay is certainly long, the
remaining factors of the Doggett test weigh decisively
against Gearhart’s claim. First, Gearhart’s own counsel
sought nine continuances during the period prior to
trial. Where a defendant seeks and obtains a continu-
ance, the defendant himself is responsible for the
resulting delay. See United States v. Larson, 417 F.3d 741, 746
(7th Cir. 2005); United States v. Baskin-Bey, 45 F.3d 200, 204
(7th Cir. 1995). Second, Gearhart’s failure to object to
his co-defendants’ requested continuances weighs
heavily against his claim that the resulting delay violated
his constitutional rights. See United States v. Oriedo, 498
F.3d 593, 597 (7th Cir. 2007). Third, and most significantly,
Gearhart was not prejudiced by the delay. Although
Gearhart argues that he was prejudiced because the
government was able to strengthen its case against him
during the delay between indictment and trial, this fact
is not relevant to the prejudice analysis. See United States
v. Salerno, 108 F.3d 730, 738 (7th Cir. 1997) (“ ‘Prejudice’ is
not caused by allowing the Government properly to
strengthen its case, but rather by delays intended to
hamper defendant’s ability to present his defense.”)
(quoting United States v. Tedesco, 726 F.2d 1216, 1221 (7th
Cir. 1984)).
No. 08-1558                                                      7

  In short, while the delay between Gearhart’s indictment
and his trial was long, the circumstances of the delay
fall well short of establishing a violation of his Sixth
Amendment rights. A fortiori, it was not plain error for
the district court to fail to raise the issue on its own
motion.3


B. Disqualification of Counsel
  Gearhart also argues that the district court’s decision to
disqualify his attorney deprived him of his Sixth Amend-
ment right to counsel. We review the disqualification of
counsel for abuse of discretion. United States v. Bender, 539
F.3d 449, 454 (7th Cir. 2008). We likewise review the
manner in which the court balances the defendant’s
right to counsel against the government’s interest in
proving its case beyond a reasonable doubt for abuse of


3
  Gearhart also argues that his Sixth Amendment rights were
violated because: (1) his counsel did not obtain his consent
before seeking continuances, and (2) the district court did not
make proper findings prior to granting the continuances. We
reject these arguments as well. First, there is no requirement that
counsel obtain Gearhart’s consent prior to making purely
tactical decisions such as the decision to seek a continuance.
Second, although it appears the district court did not make
a proper record of its reasons for granting the multiple con-
tinuances to Gearhart and his co-defendants, see Zedner v.
United States, 547 U.S. 489, 498-99 (2006) (holding that the
district court must make a record of its findings that the ends
of justice are served by granting the continuance), as Gearhart
himself requested the majority of these continuances, this
was, if anything, harmless error.
8                                                No. 08-1558

discretion. United States v. Messino, 181 F.3d 826, 829-30
(7th Cir. 1999).
  The Sixth Amendment protects a criminal defendant’s
right to a fair opportunity to secure the counsel of his
choice. Powell v. Alabama, 287 U.S. 45, 53 (1932); United
States v. O’Malley, 786 F.2d 786, 789 (7th Cir. 1986). This
right to choose one’s counsel, in turn, implies the right to
continuous representation by the counsel of one’s choice.
See Anne Bowen Poulin, Strengthening the Criminal Defen-
dant’s Right to Counsel, 28 Cardozo L. Rev. 1213, 1249
(2006). Thus, disqualification of defense counsel should be
a measure of last resort, and “the government bears a
heavy burden of establishing that disqualification is
justified.” United States v. Diozzi, 807 F.2d 10, 12 (1st Cir.
1986).
  Applying these principles, we have held that the dis-
qualification of a defendant’s counsel of choice can in
principle pose a Sixth Amendment problem. O’Malley,
786 F.2d at 789; cf. Diozzi, 807 F.2d at 11 (finding a Sixth
Amendment violation in attorney’s disqualification
where the defendant was willing to stipulate to the evi-
dence giving rise to the conflict); United States v.
Cunningham, 672 F.2d 1064, 1073 (2d Cir. 1982) (finding
a Sixth Amendment violation in attorney’s disqualifica-
tion because the defendant agreed to limit his attorney’s
cross-examination of the witness whose testimony gave
rise to the conflict).
  Like the majority of our sister circuits, we have
adopted a balancing test when the government seeks to
introduce evidence that would create a conflict of interest
No. 08-1558                                                  9

for the defendant’s attorney. Messino, 181 F.3d at 830;
O’Malley, 786 F.2d at 790-91; see also United States v.
James, 708 F.2d 40, 45 (2d Cir. 1983); Cunningham,
672 F.2d at 1073; United States v. Garcia, 517 F.2d 272, 277-
78 (5th Cir. 1975).4 Specifically, we have held that the
introduction of evidence that would generate a conflict
of interest is subject to analysis under Rule 403 of the
Federal Rules of Evidence. Messino, 181 F.3d at 830. Rule
403 provides, “[a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of
cumulative evidence.” Thus, while there is a strong
presumption of admissibility, “the Rules delineate a zone
of discretion within which judges may exclude evidence.”
Messino, 181 F.3d at 829-30. In particular, a district court
may “on rare occasions” exclude evidence to resolve a
conflict of interest when “the probative value of the
evidence is weighed against the negative consequences
of admitting the evidence.” Id. at 830.
  Gearhart’s central argument is that Rogers’ testimony
fails this balancing test because it was cumulative. Rogers
testified that Gearhart admitted he and a co-defendant


4
   Gearhart attempts to rely on the First Circuit’s decision in
Diozzi, supra, as authority for the proposition that district
courts must always exclude testimony to avoid disqualifica-
tion. However, our adoption of Gearhart’s interpretation of
Diozzi is foreclosed by Messino, in which we “decline[d] to
create a per se rule against excluding evidence to remedy a
conflict of interest.” 181 F.3d at 830.
10                                                  No. 08-1558

“had dealt with each other several times.” Gearhart argues
that this same information was provided by multiple other
witnesses who testified that Gearhart dealt, manufactured
and used methamphetamine.
  The problem with this argument is that Rogers’ testi-
mony, although close in content to other evidence that
was admitted at trial, was not strictly speaking cumula-
tive. Other witnesses testified that they distributed,
cooked or used methamphetamine with Gearhart, but only
Rogers testified that Gearhart admitted to committing
these acts with his co-conspirators. 5 This admission was
arguably probative of the existence of something more
than a mere buyer-seller relationship between Gearhart
and his co-defendants. See, e.g., United States v. Colon, 549
F.3d 565, 567-68 (7th Cir. 2008) (holding that something
more than a mere buyer-seller relationship is required to
support a conspiracy conviction). Thus, even if Gearhart
had preserved his objection to Rogers’ testimony, the
government’s interest in proving its case beyond a rea-
sonable doubt outweighed Gearhart’s interest in con-
tinuity of counsel in this case.6


5
  Along the same lines, Rogers’ testimony was not cumulative
in the light of Gearhart’s post-arrest statement. In his state-
ment, Gearhart admitted to obtaining methamphetamine from
co-defendants and did not mention the conspiracy to sell. Again,
this statement is not cumulative because Rogers testified that
Gearhart admitted to the conspiracy.
6
  Although Rogers’ testimony was properly admitted, we are
troubled by the argument the government made below in
support of its admissibility. In the district court, the govern-
                                                   (continued...)
No. 08-1558                                                 11

  Further, Shostak never asked the district court to
exclude Rogers’ testimony. Instead, after the govern-
ment gave notice of its intent to introduce Rogers’ testi-
mony Shostak moved to withdraw from the case, albeit
reluctantly. As Gearhart now notes, there were alterna-
tive ways of remedying the conflict of interest, and the
district court had broad discretion to adopt a remedy
other than disqualification. O’Malley, 786 F.2d at 790-91.
For example, the parties could have stipulated to the
evidence or agreed to limit the scope of Rogers’ cross-
examination. Messino, 181 F.3d at 830; Cunningham,
672 F.2d at 1073. However, Gearhart’s attorney failed
to request any of these options; instead, he immedi-
ately moved to withdraw. Since Shostak almost certainly
had access to confidential information concerning
Rogers, it was not plain error for the court to grant
Shostak’s motion.7


6
   (...continued)
ment argued that Rogers’ testimony should be admitted, not
because it was probative, but because testifying would enable
Rogers to obtain a sentence reduction for substantial coopera-
tion. This argument was well wide of the mark. The Messino
balancing test balances the interests of the criminal defendant
in the continuity of his or her counsel against those of the
United States in proving its case beyond a reasonable doubt.
Rogers’ interest in lowering his sentence is emphatically not
part of this calculus.
7
  For this same reason, we are not persuaded by Gearhart’s
argument that the district court was required to hold an
                                             (continued...)
12                                               No. 08-1558

                    III. CONCLUSION
    The conviction and sentence are A FFIRMED.




7
  (...continued)
evidentiary hearing on the admissibility of Rogers’ testimony
prior to granting Shostak’s motion to withdraw. In limine
hearings may be appropriate in order to determine whether a
witness actually possesses relevant information, but they
are not constitutionally required. O’Malley, 786 F.2d at 793.
Further, once again, Gearhart’s attorney never requested such
a hearing.



                            8-6-09
