USA v. Casey Hunter
Filed Nonprecedential Disposition PER CURIAM. Counsel's motion to withdraw is GRANTED and Hunter's appeal is DISMISSED. Joel M. Flaum, Circuit Judge; Kenneth F. Ripple, Circuit Judge and Ilana Diamond Rovner, Circuit Judge. [6809714-2] [6884977-1]  [15-3700]
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 18, 2017
Decided November 20, 2017
JOEL M. FLAUM, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
UNITED STATES OF AMERICA,
Appeal from the United States District
Court for the Central District of Illinois.
Michael M. Mihm,
O R D E R
Casey Hunter fled from a traffic stop with a gun, and a police officer shot him when
he saw Hunter turning to fire at him. After a two‐day bench trial, Hunter was found
guilty of possessing a firearm as a felon, see 18 U.S.C. § 922(g)(1), and sentenced as an
armed career criminal to 260 months’ imprisonment. He filed a notice of appeal, but his
appointed counsel asserts that the appeal is frivolous and moves to withdraw under
Anders v. California, 386 U.S. 738 (1967). Hunter filed a series of responses to counsel’s
motion. See CIR. R. 51(b). Because the analysis in counsel’s brief is facially adequate, we
limit our review to the subjects he discusses and those Hunter raises. See United States v.
Bey, 748 F.3d 774, 776 (7th Cir. 2014). We consider Hunter’s arguments, however, only to
the extent we can decipher them.
First, counsel and Hunter consider whether Hunter could argue that the district
judge denied Hunter his counsel of choice when he permitted Hunter’s first appointed
attorney to withdraw because of a conflict of interest. Before trial, the government
informed Hunter’s counsel, George Taseff, that it planned to call as a witness a former
client of Taseff’s named Darrius Martin; this prompted Taseff to move to withdraw. The
judge agreed that the possibility of Taseff cross‐examining his former client created a
direct and irreconcilable conflict of interest and granted the motion. See Wheat v.
United States, 486 U.S. 153, 164 (1988). But in the end Taseff’s former client did not testify.
Counsel correctly explains that Hunter had no right to his counsel of choice because he
required a court‐appointed lawyer. See United States v. Gonzalez‐Lopez, 548 U.S. 140, 151
(2006); United States v. Bender, 539 F.3d 449, 454–55 (7th Cir. 2008). Therefore, any
argument premised on this right would be frivolous.
Hunter, however, insists that the conflict of interest is “suspicious,” that the
government never intended to call Martin, and that it listed him as a witness just to force
Taseff to withdraw. Nothing in the record supports that argument. The prosecutor did
not seek Martin out; he became aware of Martin as a potential witness only because
Hunter wrote a letter to the judge complaining that Martin was informing on him.
Further, the government represented that it had every intention of calling Martin to
testify. But a witness list is not a binding contract; the government was free to cut off its
presentation of evidence when it believed it had met its burden. Finally, at the hearing
about Taseff’s withdrawal, Hunter said he understood the circumstances and moved to
continue pro se; he cannot be said to have made a timely objection to the withdrawal.
Counsel next concludes that it would be frivolous to argue that Hunter was not
competent to represent himself from the time Taseff withdrew up until the second day of
trial when his second appointed attorney took over representation. Despite having been
advised against it, Hunter insisted on proceeding pro se– a choice that the district judge
had to honor regardless of its wisdom, see Faretta v. California, 422 U.S. 806, 834–35 (1975).
Though a district judge may override a defendant’s decision to represent himself if that
defendant suffers from “severe” mental illness, see United States v. Berry, 565 F.3d 385, 391
(7th Cir. 2009), the court found that was not the case here. True, concerns about Hunter’s
mental health—stemming from his apparent paranoia, his seeming inability to cease
writing sometimes‐incoherent letters to the judge after being ordered to stop, and what
counsel believed to be odd communications with him, among other things—prompted
his second appointed attorney to move for a competence hearing during and after the
trial. The resulting psychological evaluation established that Hunter displayed “anxiety”
and “antisocial behavior” but the court found “nothing, either alone or together, rising
to the level that would constitute incompetence to stand trial.” The doctor testified at the
hearing that, despite his symptoms, Hunter had an “adequate factual understanding” of
legal processes and possessed the capacity and willingness to interact with counsel. The
district judge also relied on his own observations of Hunter before and during trial in
concluding that Hunter was both competent to stand trial and competent to represent
himself, although the judge recognized the possibility that “someone might be
competent to stand trial but not competent to effectively represent themselves.” In
Indiana v. Edwards, 554 U.S. 164 (2008) the Supreme Court held that the Constitution
permits states to insist upon representation by counsel for those competent enough to
stand trial but who still suffer from severe mental illness to the point where they are not
competent to conduct trial proceedings by themselves. Id. at 178. In Berry, we noted that
the same principle applies in federal trials, that is, a trial court may override a
defendant’s decision to proceed pro se if the defendant suffers from mental illness severe
enough to render the defendant incompetent to represent himself. 565 F.3d at 392. But
the district court held a hearing and concluded as a factual matter that Hunter was not
severely mentally ill. Arguing that the court abused its discretion in allowing Hunter to
represent himself would be frivolous because, a defendant without a diagnosed severe
mental illness generally must be allowed to proceed pro se. Berry, 565 F.3d at 391.
Counsel finally considers if Hunter could challenge his sentence but concludes that
argument would be frivolous. We agree. The judge correctly found that Hunter had at
least three predicate convictions under the Armed Career Criminal Act, which meant
that he was subject to a statutory‐minimum sentence of 180 months’ imprisonment.
See 18 U.S.C. § 924(e)(1). The district judge then calculated a guidelines range of
324 to 405 months’ imprisonment and considered the factors listed in 18 U.S.C. § 3553(a).
Ultimately, the judge imposed a below‐guidelines sentence of 260 months. He made no
procedural errors in determining the sentence, see United States v. Lyons, 733 F.3d 777,
784–85 (7th Cir. 2013), and it was substantively reasonable, see Rita v. United States,
551 U.S. 338, 347 (2007); United States v. Rice, 520 F.3d 811, 821–22 (7th Cir. 2008), so any
challenge to Hunter’s sentence would be frivolous.
Hunter attempts to raise other potential appellate arguments in his piecemeal Rule
51(b) responses, and we do our best to understand them. First, he appears to reprise a
frivolous argument from his post‐trial motions that his right to a speedy trial was
violated because three years (during some of which there was an interlocutory appeal in
this court) elapsed between his indictment and trial. See 18 U.S.C. § 3161(c)(1). The
district judge concluded that Hunter had waived this issue because he did not move to
dismiss the indictment before trial on the grounds of a speedy‐trial violation.
See id. § 3162(a)(2) (“Failure of the defendant to move for dismissal prior to trial . . . shall
constitute a waiver of the right to dismissal under this section.”). Although we see that
Hunter, while represented by trial counsel, wrote letters to the judge in which he
complained about delay, the judge appropriately did not consider these pro se filings
because Hunter had counsel at the time. See, e.g., United States v. Patterson, 576 F.3d 431,
436–37 (7th Cir. 2009) (explaining that district judge need not consider pro se filings by
defendant represented by counsel and that “such arrangements are disfavored”).
Next, Hunter says (in a filing bearing the caption of a different case, but which raises
an issue that Hunter complained about in this case too) that he was denied his
constitutional right of access to the courts. Hunter wishes to argue that the prisons where
he was incarcerated during his criminal case did not have “adequate law libraries or
adequate assistance from persons trained in the law” as required by Bounds v. Smith, 430
U.S. 817 (1977). Id. at 828. But this contention would be frivolous because the
government can satisfy the requirement of giving access to the courts by affording a
defendant access to legal representation; a law library per se is not required.
United States v. Byrd, 208 F.3d 592, 593 (7th Cir. 2000). Here, Hunter had a right to
appointed counsel throughout his case, and, although he did not accept it for a short
period of time, a defendant who invokes his constitutional right to self‐representation is
not entitled to access to a law library or other legal assistance. United States v. Sykes, 614
F.3d 303, 311 (7th Cir. 2010); Byrd, 208 F.3d at 593 (explaining that “alternative rights, like
access to a law library, do not spring up” when counsel is declined).
Hunter also speaks of “newly discovered evidence,” another ground on which he
sought a new trial. But to raise an argument in this vein would be frivolous because
Hunter did not (and does not now) identify what “evidence” he discovered, and he does
not explain what effect it could have in a new trial. Instead he lists newfound (but not
“new”) legal authority that could not warrant a new trial because it is not evidence and it
could have been presented earlier. See FED. R. CRIM. P. 33(a); United States v. Hagler,
700 F.3d 1091, 1101 (7th Cir. 2012). Further, an appellate argument based on
newly‐discovered evidence would be frivolous because “new evidence may not be
presented on appeal.” Hirmiz v. New Harrison Hotel Corp., 865 F.3d 475, 476 (7th Cir.
Finally, Hunter seems to say that he could argue that the state police who
investigated his shooting tampered with evidence and so the government should not
have introduced that evidence at trial. Hunter primarily suggests that it is impossible for
the arresting officers’ account to be true given the position of his gun on the ground, as
represented in photographs of the scene; he also seems to argue that both the ballistics
and gunpowder‐residue tests were botched. But Hunter did not timely object to the
evidence, either in a pretrial motion in limine or when the evidence was introduced at
trial. In any event, assessing the weight of evidence is the job of the factfinder, who is
free to discredit evidence that is called into question through cross‐examination or
argument. The district judge, in denying Hunter’s new‐trial motion, admitted to being
“troubled” by the way certain forensic evidence in the case had been handled but still
concluded that the government had met its burden of proving Hunter possessed the
gun. And the judge dismissed as specious Hunter’s criticisms of the photographs
presented as evidence at trial because the inconsistences Hunter highlighted were
explained by the different camera angles used in documenting the scene. These are not
conclusions we lightly would disrupt, and here, although Hunter restates his criticism,
he does not present grounds for the extraordinary relief of a new trial. In particular, we
are given no reason to suspect that the challenged evidence had a material effect on the
judge’s verdict. See United States v. Saunders, 826 F.3d 363, 368 (7th Cir. 2016). Hunter,
therefore, does not propose a non‐frivolous argument that he was unjustly convicted
because of tainted evidence.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS Hunter’s
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