In the

United States Court of Appeals

For the Seventh Circuit

Nos. 09-4055, 10-1626

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSE GAYA and SALVADOR ROSALES,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

Nos. 06 CR 896, 896-2—Wayne R. Andersen, Judge.

ARGUED JANUARY 11, 2011—DECIDED JUNE 14, 2011

Before EASTERBROOK, Chief Judge, and CUDAHY and

POSNER, Circuit Judges.

POSNER, Circuit Judge. The defendants were tried together by a jury, and convicted, of a number of cocaine

offenses. Gaya was sentenced to 30 years in prison and

Rosales to 20. The appeals present only procedural questions.

Gaya complains about the judge’s denial of his request,

made as the trial was about to start on the morning of

May 6, 2008, for a continuance to enable him to find a
2 Nos. 09-4055, 10-1626

new lawyer. The government argues that he waived his

objection to the judge’s ruling because when the judge

told him his only choice was between staying with

his lawyer and representing himself, he chose the former. To waive a claim is to give it up voluntarily. It is

doubtful that Gaya did that. The denial of his request for

a continuance forced him to choose between staying

with his current lawyer and representing himself; he

sensibly chose the lesser of the two evils.

It would be different had he changed his mind and

decided he wanted to stick with his lawyer. It’s true that

the judge said the lawyer was “an excellent lawyer” and

that Gaya said “Yeah, it is fine, your Honor. I will just go

with what you say. I will go with [his present lawyer].” But

he said this after the judge had said: “I am not willing

to put off the trial for you as a result of this.” So Gaya’s

only choice was between representing himself and

sticking with his current lawyer. The fact that he chose

the latter course doesn’t mean he was abandoning his

request that the judge grant a continuance to enable

him to find a new lawyer.

Which is not to say that he was entitled to a continuance. Had he told the judge, “I don’t like my court-appointed counsel; I want you to appoint David Boies to

represent me,” and the judge had replied that he

wouldn’t do that and therefore Gaya had to choose between sticking with his existing counsel and representing

himself, Gaya could argue on appeal that the judge

should have appointed Boies, but of course the argument would fail. And similarly in this case, though
Nos. 09-4055, 10-1626 3

Gaya preserved his argument that he was entitled to a

continuance the judge was justified in rejecting it. Gaya

did not request the continuance until the morning on

which the trial began, which (unusually) was several

days after the jury had been picked. That had to be too

late, in the absence of really exceptional circumstances,

to entitle him to a continuance to seek a new lawyer.

Eve of trial is usually too late. United States v. Harris,

394 F.3d 543, 552 (7th Cir. 2005); United States v. Schmidt,

105 F.3d 82, 89 (2d Cir. 1997); United States v. Richardson,

894 F.2d 492, 496-97 (1st Cir. 1990). To grant such a

request after a jury is picked would, by marooning the

jury, enable a defendant unhappy with that jury to try

his luck with a new one, since the time required for him

to find a new lawyer and for that lawyer to get up to

speed would be too great for the original jury to be

kept waiting for trial to begin.

The circumstances would not have justified granting

the request even if a jury hadn’t been picked. Gaya’s

lawyer, who was court-appointed, had filed his notice

of appearance in the district court on December 6, 2007,

and the trial began on May 6, 2008. He was Gaya’s

second lawyer; the first had been appointed shortly

after his arrest, which occurred exactly one year before

the second lawyer filed his notice of appearance. (Gaya

is now on his fourth lawyer.) Gaya had appeared twice

in court before May 6—at a status hearing on April 10

and when the jury was selected on April 30. And he

had had ample opportunity during the previous five

months to express to the court his dissatisfaction with

his lawyer and desire for a different one. He could have
4 Nos. 09-4055, 10-1626

done that even if May 6 had been his first court appearance; had he told the lawyer at any time that he was

dissatisfied with him and wanted his dissatisfaction

conveyed to the court, the lawyer would have been dutybound to comply. The reasons that Gaya gave the

judge for his dissatisfaction with the lawyer (the

lawyer “wasn’t basing anything on my case. He wasn’t

defending me. He wasn’t telling about for trial, nothing.

Basically all the questions he was asking me, who is the

key witness and if I wanted to cooperate”) do not appear

to have been of recent origin. Nothing had happened

on the eve of trial to induce a dramatic change of mind

about the lawyer’s suitability. “Trial judges necessarily

require a great deal of latitude in scheduling trials.

Not the least of their problems is that of assembling the

witnesses, lawyers, and jurors at the same place at the

same time, and this burden counsels against continuances except for compelling reasons. Consequently, broad

discretion must be granted trial courts on matters of

continuances; only an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a justifiable

request for delay’ violates the right to the assistance of

counsel.” Morris v. Slappy, 461 U.S. 1, 11-12 (1983), quoting

Ungar v. Sarafite, 376 U.S. 575, 589 (1964).

The case bears a superficial resemblance to United

States v. Sellers, No. 09-2516, 2011 WL 1935735 at *3-*9 (7th

Cir. May 19, 2011), which reversed the denial of a

motion for a continuance sought as in this case to

enable the defendant to obtain new counsel. The motion

was filed only five days before trial was set to begin, but

a jury had not been picked and the judge’s grounds

for the denial, which included complaints about the
Nos. 09-4055, 10-1626 5

behavior of a different lawyer in an unrelated case and

annoyance that the judge had canceled his attendance

at the Seventh Circuit judicial conference in order to

conduct the trial, seemed arbitrary. Moreover, the trial

had been scheduled to be held only two months after

the defendant was arraigned.

Rosales, our second appellant, also complains about

representation. He testified at trial, and shortly before

the end of the first day of his testimony the prosecutor

who was cross-examining him tried to show him a government exhibit consisting of phone records, intending

to undermine Rosales’ denial of being Gaya’s cocaine

supplier. Rosales’ lawyer objected on the ground that the

records should have been shown to the defense earlier.

The prosecutor responded that they were not evidence

but merely proposed impeachment materials. The judge

adjourned the trial for the day and said he would

hear argument about the phone records and resolve

the dispute over them when court reconvened the next

morning. He told Rosales’ lawyer “don’t discuss the

subject [with Rosales], don’t discuss the substance of

his testimony with him, including this,” the “this” doubtless referring to the phone records. The judge added

that the lawyer could tell his client that “I’ve [i.e., the

lawyer has] asked that you [Rosales] take a look at

things [the phone records] before you testify, but the

judge says it’s in the middle of cross-examination and as

he does in every other case, [the judge has] forbidden

me to discuss the substance of testimony in the midst of

cross-examination.”
6 Nos. 09-4055, 10-1626

That night Rosales’ lawyer filed a memorandum with

the court arguing that his client had a right under the

Sixth Amendment to discuss with him the substance of

the phone records, along with other, unspecified matters,

during the overnight recess. The judge didn’t respond

to the memo (he probably didn’t see it till the next day)

but instead ruled when trial resumed that he was

barring all cross-examination based on the phone records. Rosales was never asked about them at the trial.

He argues that even if the judge had barred him from

discussing with his lawyer just the phone records, the

judgment must be reversed, though that error—if it was

an error (it wasn’t)—was harmless squared; the phone

records were never used by the government at the trial

and anyway the evidence of Rosales’ guilt of all charges

was overwhelming. The reason it wasn’t an error is that

all the judge was doing was postponing discussion of

the phone records between lawyer and client until he

was prepared to hear argument on whether to allow

them to be used to impeach Rosales’ testimony, and the

issue became moot when the judge decided not to allow

them to be used for that purpose or, as it turned out,

any other one. For the judge after making that ruling to

have ordered a further recess in order to allow Rosales

and his lawyer to discuss how impeachment with the

phone records might have been countered had the

judge permitted their use for that purpose would have

wasted everyone’s time; the issue had become academic.

But Rosales goes further. He argues that the judge’s

ruling barred all communication with his lawyer during
Nos. 09-4055, 10-1626 7

the overnight recess, and that any impairment of a defendant’s opportunity to consult with his lawyer, unless

either utterly trivial or compellingly justified (or, preferably, both)—such as barring the defendant’s lawyer

from discussing the defendant’s testimony with him

during a 15-minute break in the defendant’s cross-examination, given the “virtual certainty that any conversation between the witness and the lawyer would relate

to the ongoing testimony,” Perry v. Leeke, 488 U.S. 272, 283-

84 (1989)—is a “structural error” necessitating reversal

even if admitted by everyone to be harmless.

The opaque term “structural error” is best understood

as denoting an error that can’t (at least without inordinate

burden or difficulty) be determined to be harmless.

United States v Marcus, 130 S. Ct. 2159, 2165 (2010);

United States v. Gonzalez-Lopez, 548 U.S. 140, 148-51

(2006); Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991). If

at the opening of the trial in this case the judge had said

to our defendants “your guilt is so obvious that I’m

going to dismiss the jury, skip the trial, and proceed

directly to sentencing,” it would be impossible to determine how certain their guilt really was, for if there

were a trial the government’s witnesses might recant or

be discredited, or the defendants might unexpectedly

testify convincingly. The inquiry into the harmlessness

of the error in denying the defendants a trial would be

the trial.

This understanding of “structural error” reconciles

the cases with 28 U.S.C. § 2111, which states that “on

the hearing of any appeal or writ of certiorari in any
8 Nos. 09-4055, 10-1626

case, the court shall give judgment after an examination

of the record without regard to errors or defects which

do not affect the substantial rights of the parties”—which

is to say unless there is “a reasonable probability that

the error affected the outcome of the trial.” United States

v. Marcus, supra, 130 S. Ct. at 2164; see also Fed. R. Crim.

P. 52. If an “error might infect an entire trial,” 130 S. Ct.

at 2166, assessing how the trial might have gone had

the error not been committed might well be impossible.

Thus, as the Supreme Court explained in United

States v. Gonzalez-Lopez, supra, with specific reference to

infringement of the right to counsel, the Justices base

a finding “of structural error upon the difficulty of assessing the effect of the error.” 548 U.S. at 149 n. 4. “Different

attorneys will pursue different strategies with regard

to investigation and discovery, development of the

theory of defense, selection of the jury, presentation of

the witnesses, and style of witness examination and jury

argument. And the choice of attorney will affect whether

and on what terms the defendant cooperates with

the prosecution, plea bargains, or decides instead to go

to trial. In light of these myriad aspects of representation, . . . it is impossible to know what different choices

the rejected counsel would have made, and then to quantify the impact of those different choices on the outcome

of the proceedings. Many counseled decisions, including

those involving plea bargains and cooperation with the

government, do not even concern the conduct of the trial

at all. Harmless-error analysis in such a context would

be a speculative inquiry into what might have occurred

in an alternate universe.” Id. at 150. In other words,
Nos. 09-4055, 10-1626 9

though the counsel the defendant had may have

appeared to do a perfectly fine job, the counsel he

wanted might have done better, and maybe even gotten

his client off.

This is a tenuous basis for distinguishing, as the cases

do, between a temporary interruption in representation

(the overnight recess in this case), on the one hand,

and ineffective assistance of counsel when there is no

interruption, on the other. The defendant who has a

lawyer, even an incompetent one, must to establish a

violation of his constitutional right to effective assistance of counsel prove that he was prejudiced by the

lawyer’s incompetence, Strickland v. Washington, 466

U.S. 668, 687, 690-96 (1984); Stephenson v. Wilson, 619

F.3d 664, 671 (7th Cir. 2010)—and that’s a lot harder to do

than opposing a prosecutor’s claim of harmless error,

for the prosecutor must prove the harmlessness of a

constitutional error—and prove it beyond a reasonable

doubt. Compare Massaro v. United States, 538 U.S. 500,

505 (2003), with Chapman v. California, 386 U.S. 18, 24-26

(1967).

The Court in Gonzalez-Lopez grounded the difference

in treatment between denial of the right to counsel of one’s

choice and denial of the right to effective counsel on the

proposition that counsel cannot be said to be ineffective

unless his performance is likely to have caused his

client to lose the case. 548 U.S. 146-47. If the distinction

seems excessively conceptual, two practical reasons

support it: judges consider a judge’s error more serious

than a lawyer’s error; and a lawyer’s incompetence
10 Nos. 09-4055, 10-1626

is manifested in specific acts and omissions (more commonly the latter, such as failure to conduct an adequate

investigation), and judges believe themselves able to

assess the likely impact of specific acts or omissions on

the outcome of the trial.

In any event the cases, whether rightly or wrongly, do

deem interruptions in opportunities for communication

between lawyer and client categorically graver than

incompetent conduct of the defense—deem them candidates for structural error and hence insulated from an

inquiry into whether the interruption was harmless.

United States v. Santos, 201 F.3d 953, 966 (7th Cir. 2000);

United States v. Triumph Capital Group, Inc., 487 F.3d

124, 131 (2d Cir. 2007); United States v. McLaughlin, 164

F.3d 1, 4 (D.C. Cir. 1998). That is why, rather than

saying that a 15-minute interruption is a harmless error,

the courts tend to call it a “trivial” violation of the right

to counsel, as in United States v. Triumph Capital Group,

Inc., supra, 487 F.3d at 134-35, which adds that it is “very

different from a harmless error inquiry.” Id. at 134, quoting

Peterson v. Williams, 85 F.3d 39, 42 (2d Cir. 1996). But

what’s meant, as the two cases just cited make clear, is

that the fact that the appellate court is confident that

the defendant would have been convicted even if the

error had not occurred does not excuse the error. It can

be excused only if it was too slight to impair the defendant’s right to counsel significantly.

Were the question in this case whether the interruption in the opportunity for lawyer-client communication

had even a remote likelihood of changing the outcome
Nos. 09-4055, 10-1626 11

of the trial, the answer would be an emphatic “no”; the

evidence of Rosales’ guilt was overwhelming to the

point of being conclusive. But that would be conventional harmless-error analysis. The analysis of harm

applicable to a violation of the right to counsel focuses

on the impact of the interruption on the ability of the

defendant’s lawyer to represent his client, even if the

outcome was foreordained—even if Clarence Darrow

and Perry Mason combined couldn’t have obtained an

acquittal of this defendant from a reasonable jury. To

make this assessment in the present case we’d have

to determine whether the discussions that Rosales’

lawyer might have had with his client during the

overnight recess at which he claims to have been

enjoined to silence could have altered Rosales’ responses

when cross-examination resumed the next day, or in

other words whether the answers he gave then might

have been different had he discussed with his lawyer

the forthcoming cross-examination (within the limitations of permitted coaching, on which see Geders v. United

States, 425 U.S. 80, 89-91 and n. 3 (1976); Serrano v. Fischer,

412 F.3d 292, 302 (2d Cir. 2005)) during the overnight

recess.

We needn’t run this hare to the ground. The judge’s

error, if error there was, was invited by the harping of

Rosales’ lawyer on the phone records. “[A] party may

not ‘invite’ error and then argue on appeal that the error

for which he was responsible entitles him to relief.”

United States v. Johnson, 26 F.3d 669, 677 (7th Cir. 1994);

see also United States v. Rosby, 454 F.3d 670, 677 (7th

Cir. 2006); United States v. Fulford, 980 F.2d 1110, 1116
12 Nos. 09-4055, 10-1626

(7th Cir. 1992); United States v. Jewell, 614 F.3d 911, 919-20

(8th Cir. 2010). That is an a fortiori case of waiver, United

States v. Quinones, 511 F.3d 289, 321 (2d Cir. 2007); United

States v. Hamilton, 499 F.3d 734, 736 (7th Cir. 2007), and

there is no reason to exempt “structural errors.” Johnson

v. United States, 520 U.S. 461, 468-70 (1997); United States

v. Underwood, 130 F.3d 1225, 1228-29 (7th Cir. 1997)

(dissent from denial of rehearing en banc).

Read literally, the judge’s ruling did forbid Rosales’

lawyer to discuss the substance of the case, and not just

the phone records, with his client during the recess. But

the ruling should not be read literally. It was oral and

spontaneous, and the phone records were its topic and

trigger. If Rosales’ lawyer had unrelated matters that

he wanted to discuss with his client (or that he thought

his client wanted to discuss with him) during the

overnight recess, he should have told the judge that,

reminding him of how dimly the courts look on interruptions of opportunities for communication between

a criminal defendant and his lawyer.

When the judge announced the recess, the lawyer said:

“I’m not going to give my client any information on how

he should answer [the prosecutor’s question about the

phone records], but I do ask that I be able to meet with

him and talk about this”—the “this” referring to the

phone records. The prosecutor—rightly objecting to

a witness’s being shown or told the contents of an impeaching document before being asked the question that

might provoke an answer that the document could be

used to impeach, United States v. Stevens, 985 F.2d 1175,
Nos. 09-4055, 10-1626 13

1180 (2d Cir. 1993); United States v. Randolph, 456 F.2d 132,

136 (3d Cir. 1972); see United States v. Cerro, 775 F.2d 908,

914-15 (7th Cir. 1985)—suggested that the discussion be

postponed to the next morning, before Rosales was crossexamined about the phone records. The judge agreed,

but the discussion was never held because he ruled the

next morning that the prosecutor couldn’t ask Rosales

about them.

Right after the judge had forbidden the lawyer to

discuss the phone records with his client during the

overnight recess, saying “don’t discuss the substance of

his testimony with him, including this” (the phone records), the lawyer asked whether he was “excluded

from speaking to my client at all? If I don’t talk to him

about this, just about the process and the witnesses.” The

judge replied: “No, I think you can say to him that

I’ve asked you take a look at things before you testify,

but the judge says it’s in the middle of cross-examination and as he does in every other case, he’s forbidden

me to discuss the substance of his testimony in the

midst of cross-examination.” The lawyer said “Okay,” but

then added: “So I can at least explain to him what’s going

on,” and the judge said “Yeah” and the lawyer responded “Okay” and then the judge added: “you’ve been

asked to be able to review documents with him that

you think [the prosecutor] might wish to use, but I said

it’s in the middle of cross, no, and then we’ll see what

happens.”

So the only thing clearly forbidden was discussing

the phone records. Yet that night the lawyer filed a memo-
14 Nos. 09-4055, 10-1626

randum with the court in which he stated his understanding that he was forbidden to discuss “any matter

relating to the substance of [his client’s] testimony”

overnight and argued that the prohibition violated the

Sixth Amendment. That was too late. The lawyer must

have known that the judge wouldn’t see the memo

until the morning—when the overnight recess would

be over.

The exchange between judge and lawyer over what if

anything could be discussed during the overnight recess

is rich in ambiguity. But the lawyer himself seems to

think that it was mainly, maybe entirely, and in any

event critically about the phone records. In the memo

that he submitted to the district court that night he

again asked to be allowed to discuss them with his

client. And in his reply brief in this court he says that he

“was simply asking for the ability to hear what his client

had to say about the phone records” (emphasis added).

Any discussion of subjects unrelated to the phone

records probably would have been incidental, or even

accidental, for his opening brief says “there is no way to

know what information would have been exchanged or

what other subjects would have been discussed had this

conversation regarding the phone records and other

substantive matters related to testimony and strategy

occurred during the overnight recess.” He insisted and

still insists on his right to have discussed the phone

records with his client. (He had no such right, as we said.)

Particularly telling is an exchange between him and the

judge right after the judge said that the phone records
Nos. 09-4055, 10-1626 15

could not be used to impeach Rosales. The judge asked the

lawyer whether therefore the cross-examination of his

client could proceed and the lawyer responded: “Yes,

I think we should go ahead with Mr. Rosales’ testimony.”

Evidently the lawyer’s only concern had been with the

phone records, for with them out of the case he evinced

no desire for any additional time for conferring with

his client before the trial resumed.

In this court he fastens on one pair of words uttered

by the judge—“including this” (“this” meaning the

phone records)—to argue that the judge forbade him to

discuss any testimony with his client during the recess.

But had he been planning to discuss other matters with

his client he should have said to the judge: “I’ll stay

completely away from the phone records, as you’ve

directed, but I’d like permission—and I consider it my

client’s right under the Sixth Amendment—to discuss

with my client testimony unrelated to the records.” A

judge’s slip of the tongue, fatal if treated as a ruling

but easily corrected by the lawyer adversely affected by

it, is not a reversible error.

Rosales complains, finally, about the sentence. He was

given a sentence enhancement because of a previous

drug conviction that the government described as a

conviction of “manufacturing/delivering cocaine.” In fact,

though that had been the charge, the conviction was for

the lesser included offense of possession of cocaine. But

the sentence stated in the government’s submission

describing Rosales’ prior offense was accurate, and before

his sentencing for his current offense the government
16 Nos. 09-4055, 10-1626

moved to amend its submission to correct the description of the sentence for the prior conviction. 21 U.S.C.

§ 851(a)(1). The judge allowed the amendment and imposed the enhancement. The government’s error was

beyond harmless—it was utterly inconsequential. 

AFFIRMED.

6-14-11