In the

United States Court of Appeals

For the Seventh Circuit

Nos. 97-3132, 97-3159, 97-3163, 97-3480,

97-3666, 97-3683, 97-3697, 98-1066,

98-1265, 98-1310, 98-1981,

98-1991, 98-2362, 98-3115 & 98-3625

United States of America,

Plaintiff-Appellee,

v.

Andrew ("Bay-Bay") Patterson, Robert Patterson,

Henry Patterson, Andrew L. ("Maine") Patterson,

Tyrone Williams, Andre Williams, Durwin Baker,

Terry Clark, Willie Connor, Maurice Foster,

Gregory Hubbard, Jerry Patterson, Lennell

Patterson, Odell Sumrell, and Edgar Williams,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern

Division.

No. 95 CR 242--Robert W. Gettleman, Judge.

Argued February 15, 2000--Decided June 1, 2000

 Before Posner, Chief Judge, and Easterbrook

and Diane P. Wood, Circuit Judges.

 Easterbrook, Circuit Judge. Fifteen

defendants appeal their convictions for

drug-related offenses. Four of their

confederates pleaded guilty and testified

for the prosecution at the 20-week trial.

More evidence came from tape recordings

of incriminating conversations. The jury

was entitled to conclude that all 15

appellants were affiliated with the

Traveling Vice Lords street gang. Andrew

"Bay-Bay" Patterson, one of the gang’s

"five-star universal elites," was

defendants’ leader. We use the street

name "Bay-Bay" because eight Pattersons

were among the defendants, and Bay-Bay’s

nephew "Maine" Patterson shares the given

name "Andrew." Bay-Bay supplied the

drugs, while his brothers Robert and

Henry supervised their distribution. The

operation lasted at least a decade and
during its best years grossed more than

$40,000 a day in retail sales. Sentences

are correspondingly high: the shortest

term for any appellant is 210 months’

imprisonment, and three of the

appellants, including Bay-Bay and Robert,

were sentenced to life imprisonment.

Because the arguments presented on appeal

are self-contained, we omit further

details.

I

 The district court used a struck-jury

system to select the jurors. Members of

the venire were screened, and some were

excused for cause, until the court had a

pool large enough to seat a jury and

alternates, taking account of peremptory

challenges. In a criminal case the

defense is entitled to 10 challenges and

the prosecution 6, Fed. R. Crim. P.

24(b), plus up to 3 more to be exercised

against alternates, Rule 24(c)(2), and in

a multi-defendant case the district court

may award extra challenges. It did so

here, granting the defendants

(collectively) 20 and the prosecutor 12,

plus 2 apiece for alternates. Because the

judge planned to seat 12 jurors and 8

alternates, the pool had to contain 56

persons, to ensure that if all peremptory

challenges were exercised (and the

prosecution and defense never challenged

the same person) 20 persons would be

left. After the initial screening for

cause, 63 members of the venire remained,

and the district judge put all 63 into

the pool for the exercise of peremptory

challenges (and any belated challenges

for cause). The judge decided not to

establish a priority within this pool.

All 63 had an equal chance of serving.

After peremptory challenges were

exercised, some adjustments were made

(the judge granted additional challenges

because some strikes overlapped), and 31

persons remained, the clerk shuffled the

juror cards and drew 12 to be the jurors.

Then each side exercised 2 challenges

against the residual pool of 19, the

clerk shuffled the remaining cards, and 8

alternates were drawn.

 Defendants objected to this procedure

(and to avoid parsing who objected to

what, we treat everyone as objecting to

everything). They wanted to know the

sequence in which members of the pool

would be called to sit on the jury, so
that they could concentrate their

challenges on those persons most likely

to serve. As the district court organized

matters, however, every member of the

pool was equally likely to sit, so the

defense could not target challenges

strategically. Moreover, the extra

members in the pool diluted the utility

of each challenge by the ratio 56/63. The

20 challenges that the defendants

initially were allotted had the same

practical effect with a 63-person pool as

18 challenges would have had with a 56-

person pool. The pool’s extra size

effectively deducted 2 challenges.

 All members of the jury actually seated

in the case were impartial. Still,

defendants insist that the convictions

must be reversed, because they were

unable to make the best of their

peremptory challenges. As defendants see

it, the district judge committed at least

four errors in the jury-selection

process:

The court created a pool of 63

venire members, instead of the 56

that would exactly equal the

number of jurors needed plus the

number of challenges. United

States v. Ricks, 802 F.2d 731,

737 (4th Cir. 1986) (en banc),

declared that excess membership

in a struck-jury pool always is

reversible error unless the judge

unequivocally reveals the order

of selection from the pool.

The judge did not list the pool’s

members in order, which defeated

defendants’ efforts to target the

persons who were most likely to

serve. United States v.

Underwood, 122 F.3d 389 (7th Cir.

1997), held that a related

deficit of information about the

order in which jurors would

emerge from the pool always is

reversible error.

Although Fed. R. Crim. P.

24(c)(1) provides that a "court

may empanel no more than 6

jurors, in addition to the

regular jury, to sit as alternate

jurors," the district judge

decided to select 8 alternates.

This diluted the effectiveness of

the peremptory challenges
available to remove potential

alternate jurors.

Although Fed. R. Crim. P.

24(c)(2) provides that defendants

receive 3 additional peremptory

challenges when the district

judge seats 5 or 6 alternates,

the judge in this case allowed

only 2 extra challenges for 8

alternates--a 1-to-4 ratio,

instead of Rule 24(c)’s 1-to-2

ratio.

None of these events calls into question

the impartiality of the jury eventually

selected, which makes it hard to see why

there is any real problem. United States

v. Martinez-Salazar, 120 S. Ct. 774

(2000), decided after Ricks and Underwood

(the cases on which defendants

principally rely), stresses that

peremptory challenges have served their

purpose when the jury finally selected is

impartial. Martinez-Salazar rejects any

argument that a party is entitled to

devote all peremptory challenges to

strategic use such as eliminating

unbiased jurors who a party believes may

(perhaps because of their open minds)

favor the other side. A peremptory

challenge devoted to removing a juror who

should have been disqualified for cause

is not, the Court held, equivalent to

depriving the party of a peremptory

challenge; instead this is one common and

proper use of a challenge. Here, as in

Martinez-Salazar, the defendants had the

prescribed 10 challenges; indeed they had

twice that, and if the overflow of the

pool meant that they had an equivalent of

"only" 18 challenges, that was plenty.

 What led to reversal in Underwood was an

ambiguity in the district judge’s juryselection protocol that led the

defendants to misunderstand the sequence

in which members of the pool would be

seated on the jury. That misunderstanding

led the defendants not to challenge two

persons who they thought were so far back

in the order that they were unlikely to

be seated, but who actually served. If an

ambiguity that affected two challenges is

reversible error, then failure to

establish any sequence, a step that

potentially affected all 20 challenges,

must be error too. However logical that

argument may be, Underwood is no longer

authoritative after Martinez-Salazar. Our
views in Underwood reflected the belief

that defendants are entitled to make

maximum strategic use of their peremptory

challenges. That same conception of

defendants’ entitlements led the ninth

circuit to hold that "losing" a

peremptory challenge in order to remove a

juror who should have been excused for

cause is reversible error. United States

v. Martinez-Salazar, 146 F.3d 653 (9th

Cir. 1998). But the Supreme Court took a

different tack, observing that MartinezSalazar did not lose a peremptory

challenge but instead used it "in line

with a principal reason for peremptories:

to help secure the constitutional

guarantee of trial by an impartial jury."

120 S. Ct. at 782. Just so here.

Defendants received their allotment of

10, and to spare. They had full use of

all challenges for the purpose of

securing an impartial jury. That

defendants could not use them to maximum

strategic advantage seems to us a benefit

rather than a problem.

 Formally, at least, the district judge’s

handling of alternates is more

problematic. Rule 24(c)(2) grants 3 extra

challenges for 6 alternates; the district

judge allowed 2 extra challenges for 8

alternates. This looks like a reduction

in the number of challenges provided by

the rule, something that did not happen

in Martinez-Salazar. Appearances may

deceive, because everyone in the pool of

potential alternates had passed the first

wave of peremptory challenges. Any extra

challenges provided for the selection of

alternates meant that the defendants (and

the prosecutor) had a higher ratio of

challenges to alternates than of

challenges to principal jurors. Rule

24(c)(2) assumes that jurors will be

selected either by the jury-box system or

by a struck-jury method in which

defendants know the sequence in which

members of the pool will be seated. When

the sequence is known, defendants

concentrate their challenges on venire

members at the front of the queue; Rule

24(c)(2) provides extra challenges for

the selection of alternates because

otherwise defendants might have no

peremptories left when the time arrives

to pick alternates. Because the

peremptory challenges exercised against

the pool of 63 were as likely to excuse

would-be alternates as to excuse would-be

regular jurors, there was no need for a
second allotment of challenges. But the

Rule provides for them anyway, and it was

violated. Defendants argue for automatic

reversal. Once again Martinez-Salazar

leads to a different approach.

 Underwood drew its rule of automatic

reversal from the statement in Swain v.

Alabama, 380 U.S. 202, 219 (1965), that

"[t]he denial or impairment of the right

[to peremptory challenge] is reversible

error without a showing of prejudice."

Underwood, 122 F.3d at 392. Relying on

Ross v. Oklahoma, 487 U.S. 81 (1988), the

prosecutor argued that harmless-error

analysis applies to problems concerning

peremptory challenges. We replied, 122

F.3d at 392: "Ross does not authorize us

to abandon the automatic reversal rule

that the Supreme Court announced in Swain

where, as here, a denial or impairment of

a defendant’s statutory right to the

intelligent exercise of peremptory

challenges is found." Underwood thus

relies entirely on Swain for the rule of

automatic reversal. Martinez-Salazar,

however, had this to say on the subject:

Relying on language in Swain v.

Alabama, 380 U.S. 202 (1965), as did

the Court of Appeals in the decision

below, Martinez-Salazar urges the

Court to adopt a remedy of automatic

reversal whenever a defendant’s

right to a certain number of

peremptory challenges is

substantially impaired. Brief

for Respondent 29 (quoting Swain, 380

U.S., at 219 (a "’denial or

impairment of the right [to exercise

peremptory challenges] is reversible

error without a showing of

prejudice’")). Because we find no

impairment, we do not decide in this

case what the appropriate remedy for

a substantial impairment would be.

We note, however, that the oftquoted language in Swain was not

only unnecessary to the decision in

that case--because Swain did

notaddress any claim that a

defendant had been denied a

peremptory challenge--but was

founded on a series of our early

cases decided long before the

adoption of harmless-error review.

120 S. Ct. at 782 n.4. Martinez-Salazar

did not decide the harmless-error

question, but this language pulls the
plug on the Swain dictum and requires us

to address the harmless-error question as

an original matter.

 Peremptory challenges come from Rule 24,

and Rule 52(a) adds: "Any error, defect,

irregularity or variance which does not

affect substantial rights shall be

disregarded." See also 28 U.S.C.

sec.2111. Martinez-Salazar makes it clear

that peremptory challenges do not have an

independent constitutional source; their

provenance is statutes and rules. 120 S.

Ct. at 779. See also Ross, 487 U.S. at

88. Rule 52(a) says that deviation from

the rights established by Rule 24 and

other provisions of the Rules of Criminal

Procedure leads to reversal only if the

error affects "substantial rights".

Errors much more serious than the loss of

a peremptory challenge or two are

analyzed under this standard. E.g., Neder

v. United States, 527 U.S. 1 (1999)

(omission from jury instructions of an

element of the offense); Jones v. United

States, 527 U.S. 373 (1999) (inclusion of

improper aggravating factor in a capital

case); United States v. Lane, 474 U.S.

438 (1986) (misjoinder). See also, e.g.,

Peguero v. United States, 526 U.S. 23

(1999); Bank of Nova Scotia v. United

States, 487 U.S. 250 (1988); United

States v. Hasting, 461 U.S. 499 (1983).

Rule 52(a) requires us to undertake harm

less-error analysis.

 Defendants respond that an error

concerning a peremptory challenge always

affects a "substantial" right. A right is

"substantial" when it is one of the

pillars of a fair trial. Trial before an

orangutan, or the grant of summary

judgment against the accused in a

criminal case, would deprive the

defendant of a "substantial" right even

if it were certain that a jury would

convict. Sullivan v. Louisiana, 508 U.S.

275, 279 (1993). For the same reason, a

biased tribunal always deprives the

accused of a substantial right. Bracy v.

Gramley, 520 U.S. 899 (1997). See also

Gomez v. United States, 490 U.S. 858, 876

(1989) (decision by an unauthorized

tribunal deprives the defendant of a

substantial right). Deprivation of

counsel likewise so undermines the

ability to distinguish the guilty from

the innocent that it always leads to

reversal. See United States v. Cronic,

466 U.S. 648, 658-59 (1984); Castellanos
v. United States, 26 F.3d 717 (7th Cir.

1994). But "if the defendant had counsel

and was tried by an impartial

adjudicator, there is a strong

presumption that any other errors that

may have occurred are subject to

harmless-error analysis." Rose v. Clark,

478 U.S. 570, 579 (1986). It is

impossible to group an error concerning

peremptory challenges with the denial of

counsel or trial before a bribed judge.

When the jury that actually sits is

impartial, as this one was, the defendant

has enjoyed the substantial right.

Peremptory challenges enable defendants

to feel more comfortable with the jury

that is to determine their fate, but

increasing litigants’ comfort level is

only one goal among many, and reduced

peace of mind is a bad reason to retry

complex cases decided by impartial

juries.

 McDonough Power Equipment, Inc. v.

Greenwood, 464 U.S. 548 (1984), makes the

point. A juror’s failure to respond to a

question on voir dire deprived a party of

information that would have been useful

in exercising a peremptory challenge.

Relying on 28 U.S.C. sec.2111 and Fed. R.

Civ. P. 61, a civil analogue to Rule

52(a), the Court concluded that reversal

would not be justified unless a correct

response by the juror "would have

provided a valid basis for a challenge

for cause." 464 U.S. at 556. The Court

recognized the importance of information

to the intelligent exercise of peremptory

challenges but concluded that "[t]he

harmless-error rules adopted by this

Court and Congress embody the principle

that courts should exercise judgment in

preference to the automatic reversal for

’error’ and ignore errors that do not

affect the essential fairness of the

trial." Id. at 553. Although McDonough is

a civil case, its essential principle is

applicable to criminal cases as well.

 In any given situation there remains the

possibility that a blunder affects a

right that is substantial in the sense of

Kotteakos v. United States, 328 U.S. 750

(1946): that it "had substantial and

injurious effect or influence in

determining the jury’s verdict". 328 U.S.

at 776. See also United States v. Olano,

507 U.S. 725, 734-35 (1993). An

exceptionally confused jury-selection

process may have such an effect. (Thus we
do not say that the result in Underwood

was necessarily wrong, only that its

resort to a rule of automatic reversal is

incompatible with Rule 52.) In a trial

like this, however, the possibility that

an error altered the outcome is too

remote to be worth investigating. One or

two extra peremptory challenges to remove

additional members of a panel that

already had been subject to 22 peremptory

challenges by the defense could not have

affected the outcome of the case. This

was a well-screened panel, and the jury

that sat was impartial. Doubtless it will

often be impossible to show that a change

in the number of peremptory challenges

affected the outcome of a trial--but

inability to trace adverse effects to a

mistake does not justify reversing a

conviction; it shows instead that there

is no warrant for disturbing the

judgment. United States v. Morrison, 449

U.S. 361 (1981).

II

 Customers were reluctant to approach

defendants’ distribution outlets while

police were visible. Officer Robert

Drozd, in particular, gave the operation

trouble. One day in 1991 Drozd, seeing

more than 30 cars queued up for service

at the gang’s "spot," began waving the

drivers to get under way. Henry Patterson

complained: "Bob, you’re killing us."

When Drozd feigned ignorance about the

meaning of this comment and the purpose

of the cars in the street, Henry offered:

"Can we do something?" Again Drozd played

dumb, and Henry continued: "Well, can I

give you a gun?" Drozd agreed to this

bribe, and 20 minutes later he was

directed to an alley from which he

retrieved a sawed-off shotgun. Thus began

a course of dealing in which Drozd caused

trouble, one or more of the defendants

offered a gun, and after picking up his

reward Drozd left. Usually the Pattersons

told Drozd where to find a weapon, but

sometimes a hand-to-hand exchange was

made. Drozd reported these bribes to

federal officials. Nine of the 15

appellants were involved in the guns-forprotection deals and were convicted of

violating 18 U.S.C. sec.924(c)(1), which

makes it a crime to use or carry a

firearm during and in relation to a drug

trafficking offense.

 Bailey v. United States, 516 U.S. 137
(1995), holds that a gun is "used" within

the meaning of sec.924(c)(1) only when it

is employed actively, as by shooting it

or waiving it about to intimidate people.

Simple possession differs from "use,"

Bailey concludes. (Section 924(c) has

since been amended; we refer to the

version in force when these events

occurred.) Defendants insist that leaving

guns for Drozd to "find" is not

sufficiently active to qualify as "use"

under sec.924(c)(1). But they don’t

reckon with Smith v. United States, 508

U.S. 223 (1993), which holds that the

exchange of a gun for drugs is a "use" of

the gun within the meaning of

sec.924(c)(1). Bailey gave the

transaction in Smith as an example of a

sufficiently active employment of a

weapon. 516 U.S. at 143. We can’t see any

difference between gun-for-drugs (held

sufficient in Smith) and gun-forprotection (the situation here). In each

case the gun’s owner has bartered the

weapon for a drug-related benefit--either

drugs (in Smith) or a continued ability

to sell drugs (our case). Bribing an

officer with a gun in order to go on

selling drugs is a use of the gun "during

and in relation to" the drugs’

distribution. Defendants rely on United

States v. Westmoreland, 122 F.3d 431,

435-36 (7th Cir. 1997), which held that

accepting a gun in exchange for drugs

does not violate sec.924(c)(1), even

though per Smith accepting drugs in

exchange for a gun does. Perhaps the

transaction in Westmoreland was best

understood as using drugs during and in

relation to a firearms offense. Using

drugs as currency to buy guns does not

"use" the guns. But by bribing Drozd with

guns, the defendants actively used

firearms during and in relation to their

drug business.

III

 Timothy S. Hearst, who represented

Robert Patterson at trial, was not

reliable. Many days he was late; others

he did not appear at all. He missed seven

days of Drozd’s testimony, four of five

sessions of the jury instruction

conference, most of the other defendants’

closing arguments, and proceedings to

address notes from the jury during

deliberations. He had a short legal

career; admitted to practice in 1992,

Hearst was disbarred in March 1999 for
neglecting cases and converting clients’

funds. But in post-trial proceedings, the

district court concluded that Hearst

furnished Robert with effective

assistance of counsel--first because

Hearst vigorously cross-examined the

prosecution’s witnesses and mounted a

plausible defense (that there were

multiple conspiracies and that Robert did

not join the single conspiracy charged in

the indictment), and second because it

was impossible to show prejudice given

the strength of the prosecution’s

evidence. The hearing on Hearst’s conduct

spanned three days. Rare is the claim of

ineffective assistance that can be

evaluated intelligently on direct appeal,

but, because Robert’s contentions have

received the district judge’s full

consideration on a record the parties

agree is complete, they are properly

before us now. Guinan v. United States, 6

F.3d 468 (7th Cir. 1993). Moreover, the

parties have agreed, in memoranda filed

after the oral argument, that a remand

for further hearings is not necessary or

appropriate. We must evaluate Robert’s

contentions on the record as it stands.

 Abandoning any argument that he suffered

prejudice from Hearst’s performance,

Robert advances the more promising

contention that for extended portions of

the trial he just did not have any

lawyer--and that deficiency violates the

sixth amendment even if the defendant

cannot establish a likely effect on the

outcome. Satterwhite v. Texas, 486 U.S.

249, 256 (1988); United States v. Cronic,

466 U.S. 648, 658-59 (1984); United

States v. Russell, 205 F.3d 768 (5th Cir.

2000). Cf. Roe v. Flores-Ortega, 120 S.

Ct. 1029, 1038 (2000). To this the

prosecutor responds that Robert always

had counsel--though not always Hearst.

Lawyers representing the other defendants

stood in for Hearst while he was awol. If

Robert consented to this switch in

representation, then he had a lawyer

throughout the proceedings and cannot

invoke the abandonment principle.

 But did he consent? Here is an exchange

that the parties agree is typical:

THE COURT: Good morning, everyone.

Please be seated. Everybody here,

ready to go?

MR. PILOLLA: Mr. Hearst is not
here. I am standing in for him.

THE COURT: Who is it?

MR. PILOLLA: Mr. Hearst.

THE COURT: Mr. Hearst. You are

standing in for him, Mr. Pilolla?

MR. PILOLLA: I am.

MS. MURDOCK: Does his client waive

his presence?

THE COURT: Does Mr. Hearst’s client

waive his presence? Mr. Patterson?

DEFENDANT R. PATTERSON: Yes.

THE COURT: Thank you, sir.

The district judge did not ask Robert

what he understood by "waiv[ing Hearst’s]

presence"--in particular, the judge did

not inquire whether Robert understood the

other options, and understanding one’s

options is an essential ingredient of

waiver when the right at stake is

counsel. See Johnson v. Zerbst, 304 U.S.

458 (1938). On another occasion the judge

asked Robert whether he had "any

objection" to "being represented by Mr.

Aron" when Hearst was not present; Robert

replied "Yeah, it’s okay." The judge’s

abbreviated inquiries would have been

adequate if Hearst’s absences had been

few or brief; virtual representation is

common and proper in extended, multidefendant trials. See United States v.

Jackson, 207 F.3d 910, 918-19 (7th Cir.

2000). But Hearst’s absences were too

common and too lengthy for the normal

stand-in approach. What happened looks

more like a partial substitution of

counsel, or the appointment of co-counsel

to assist Hearst, and such steps require

additional care. Did Robert know that he

had other options? If Robert believed

that the only alternative to proceeding

with Pilolla, Aron, or other defendants’

lawyers was proceeding with no lawyer at

all for extended portions of the trial,

then the waiver is ineffectual. See

United States v. Morrison, 946 F.2d 484,

502 n.4 (7th Cir. 1991). If, however,

Robert knew that he had a right to his

own lawyer--that is, to delay the trial

until Hearst arrived or another lawyer

was appointed in his stead and prepared

to proceed as his advocate--then the
waiver was informed, and Robert cannot

complain that he was unrepresented even

momentarily.

 Unfortunately the district court did not

make the essential inquiry at trial, and

in the post-verdict proceedings the

prosecutor chose to let the issue slide.

Counsel asked Robert: "Do you have an

understanding as to what would happen if

you didn’t agree to these other lawyers

standing in for your case?" Robert

answered "No, sir." and the prosecutor

did not follow up by cross-examination.

Resources were at the prosecutor’s

disposal. The district judge remarked

when denying Robert’s motion for a new

trial that although Robert often had to

make do with a stand-in, on "other

occasions when Mr. Hearst believed that

he wasn’t feeling well enough to carry

on, we recessed the trial. It was late in

the trial. At that point I was not going

to declare a mistrial with respect to Mr.

Patterson. I would rather have waited

until Mr. Hearst felt better, which is

exactly what we did." This implies that

Robert had actual knowledge of his option

to delay the trial until Hearst returned-

-though perhaps the fact that the judge

did not take this step until "late in the

trial" means that Robert was uninformed

when he consented earlier. But we need

not pursue this subject, because the

prosecutor did not pursue it. The United

States allowed Robert’s answer to stand

unchallenged; we must assume that he did

not know his options.

 To say that Robert had the right to

counsel does not necessarily mean that an

irresponsible lawyer (or the defendant’s

ignorance of his entitlements) may bring

a complex trial to a halt or force a

severance. Hearst had been appointed, and

the district judge could have elected to

appoint a co-counsel or relieve him

altogether. Perhaps that is the best way

to understand what happened: the district

court appointed some of the other defense

lawyers as co-counsel for Robert. A

defendant could not block that step just

by saying that he preferred Hearst; when

a court appoints counsel, it need not

choose the lawyer the defendant prefers.

Morris v. Slappy, 461 U.S. 1 (1983). Once

again, however, the record does not

reveal information that is essential to

evaluating the propriety of appointing

co-counsel (if that is the best way to
understand matters). Other defendants’

lawyers could not represent Robert if

that would have created a conflict of

interest with their own clients. See

Wheat v. United States, 486 U.S. 153,

159-62 (1988). The district court did not

explore the question whether conflicts

existed or invite waivers (from Robert

and other defendants; all clients would

have to consent under the circumstances).

See United States v. Roth, 860 F.2d 1382

(7th Cir. 1988) (holding that defendants

may waive the entitlement to conflictfree counsel, provided the waiver is

intelligent). Nor did the judge ask

whether the other lawyers were pursuing a

sensible defense strategy for Robert. If

to other defense lawyers "standing in"

for Hearst meant only defending their own

clients’ interests and reporting to

Hearst at day’s end what had transpired,

then again Robert was effectively

unrepresented.

 According to the memorandum the United

States filed after oral argument, Robert

forfeited any entitlement to protest the

absence of an inquiry into conflicts (or

the way other lawyers understood their

obligation to protect Robert’s interests)

by not presenting evidence on these

points at the hearing. That puts the

burden in the wrong place. A judge who

effectively appoints one lawyer to serve

two clients must initiate inquiry on his

own, see Russell, as the judge in this

trial did not. Belated inquiry could have

shown that the omission at trial was

harmless, because there was no conflict,

but the prosecutor did not raise the

subject at the hearing. Nor do we think

it possible to say that Robert forfeited

the entire subject--not only because

Hearst’s absences were a major component

of Robert’s motion for a new trial (which

should have alerted the prosecution to

the need to develop evidence about

possible conflicts) but also because the

United States did not argue forfeiture in

its appellate brief. It raised forfeiture

for the first time in the memorandum

submitted after argument, and by that

delay it forfeited any right to assert

Robert’s potential forfeitures at an

earlier stage.

 One final possibility requires brief

consideration. A defendant is entitled to

counsel only at critical stages in the

prosecution against him. If nothing that
occurred during Hearst’s absences was

relevant to the charges against Robert,

then perhaps he has not suffered a loss

of counsel during a critical stage. Once

again, however, this possibility has been

forfeited by the United States--perhaps

because it is so obvious that all of the

evidence presented in a conspiracy

prosecution counts against every

defendant. We agree with the fifth

circuit’s conclusion in Russell that when

the defendant’s lawyer skips multiple

days of a trial at which his client is

accused of conspiring with other

defendants, the accused does not

effectively waive his right to counsel

(or consent to vicarious representation

by other defendants’ lawyers), and the

judge does not take the steps necessary

to appoint replacement counsel or add cocounsel, the judgment must be set aside

without any inquiry into prejudice. 

IV

 Tyrone Williams was acquitted of the

only firearms charge brought against him,

and he contends that this acquittal

perversely increased his sentence.

Calculated without regard to any firearms

adjustments, Williams’ sentence would

have been in the range for offense level

41 and criminal history category VI. That

range is 360 months to life. Had he been

convicted of the weapons charge, a

minimum of 60 months (which must run

consecutively) would have been added, for

a final sentencing range of 420 months to

life. Because he was acquitted of "using

or carrying" a gun, however, the district

judge had to ask whether Williams or one

of his partners in crime possessed a gun,

a lower standard under U.S.S.G.

sec.2D1.1(b)(1) than Bailey sets for

conviction under sec.924. See United

States v. Carmack, 100 F.3d 1271, 1279-80

(7th Cir. 1996). Possession of a

dangerous weapon during the offense leads

to two extra levels, "unless it is

clearly improbable that the weapon was

connected with the offense." U.S.S.G.

sec.2D1.1 Application Note 3. The

district judge found by a preponderance

of the evidence that Williams and many

co-conspirators possessed firearms, and

Williams did not establish to the judge’s

satisfaction that the guns were

unconnected to the offense. That finding

put Williams at offense level 43, and the

guideline "range" for that level has only

one entry: "life." Yet under U.S.S.G.
sec.2K2.4 Application Note 2, a

conviction on the sec.924(c) charge would

have precluded a two-level enhancement

under sec.2D1.1(b)(1), in order to avoid

double counting. This sets up Williams’

protest. What sense can it make to have a

sentencing range of 420 months to life

for a person convicted of using or

carrying a gun during and in relation to

a drug offense, and a mandatory sentence

of life if the person is acquitted of

that charge?

 Perhaps this is an appearance without

substance. For many people, a sentence of

420 months (35 years) and a sentence of

life imprisonment come to the same thing,

given the defendant’s age at the time of

conviction. For young defendants,

however, there may be a practical

difference when the criminal behavior

leads to a high offense level. Section

2K2.4 Application Note 2 establishes a

sensible rule for the vast majority of

defendants, because the mandatory fiveyear-minimum for a violation of

sec.924(c) exceeds the effect of two

offense levels. But when the offense

level reaches 32 (at criminal history

level VI) a two-level increase can lead

to a more severe punishment than the

minimum possible sentence under

sec.924(c)(1).

 The Constitution does not guarantee a

completely rational system of sentencing.

See, e.g., Chapman v. United States, 500

U.S. 453, 466-68 (1991); Neal v. United

States, 516 U.S. 284 (1996). Unlike the

situation in Chapman and Neal, however,

Williams has not been caught by a

statutory minimum sentence that causes a

less culpable person to be punished more

severely. His punishment depends wholly

on the Sentencing Guidelines, and

Congress has provided an escape hatch for

unusual situations: departure under 18

U.S.C. sec.3553(b). See Koon v. United

States, 518 U.S. 81 (1996). The

Sentencing Commission recognized that the

anti-double-counting norm could lead to

sentencing inversions--that is, to more

culpable persons receiving lower

sentences, see United States v. Brigham,

977 F.2d 317 (7th Cir. 1992)--and invited

departures by sec.2K2.4 Application Note

2, which we now set out in full:

Where a sentence under this section

is imposed in conjunction with a
sentence for an underlying offense,

any specific offense characteristic

for the possession, use, or

discharge of an explosive or firearm

(e.g., sec.2B3.1(b)(2)(A)-(F)

(Robbery)) is not to be applied in

respect to the guideline for the

underlying offense.

In a few cases, the offense level

for the underlying offense

determined under the preceding

paragraph may result in a guideline

range that, when combined with the

mandatory consecutive sentence under

18 U.S.C. sec.844(h), sec.924(c), or

sec.929(a), produces a total maximum

penalty that is less than the

maximum of the guideline range that

would have resulted had there not

been a count of conviction under 18

U.S.C. sec.844(h), sec.924(c), or

sec.929(a) (i.e., the guideline

range that would have resulted if

the enhancements for possession,

use, or discharge of a firearm had

been applied). In such a case, an

upward departure may be warranted so

that the conviction under 18 U.S.C.

sec.844(h), sec.924(c), or

sec.929(a) does not result in a

decrease in the total punishment. An

upward departure under this

paragraph shall not exceed the

maximum of the guideline range that

would have resulted had there not

been a count of conviction under 18

U.S.C. sec.844(h), sec.924(c), or

sec.929(a).

If the district judge would have given

Williams a life sentence (one within the

level 41 range without need for

departure) had he been convicted of the

firearms count, then the acquittal has

not affected his sentence and he has no

complaint. Similarly, the judge had

discretion to avoid a sentencing

inversion by departing downward. If, say,

a conviction under sec.924(c) would have

led the judge to select a sentence of 420

months for Williams (the bottom of the

level 41 range, plus the consecutive 60

months), then perhaps the district court

could have justified a downward departure

to 400 months for simple possession (or

being accountable for confederates’

possession).

 After reviewing the sentencing
proceedings, we are unsure whether the

district judge understood the extent of

his discretion under sec.3553(b). We

therefore remand Williams’ sentence so

that the district judge may consider his

options. If the judge believes that life

imprisonment is the best punishment, one

he would have meted out without regard to

conviction under sec.924(c), then the

sentence stands. If the judge would have

given a lesser sentence for the

combination of a level 41 offense and a

sec.924(c) conviction, however, then the

judge should consider whether it is

appropriate to depart downward, so that

Williams’ term falls in the range between

360 months’ imprisonment and the sentence

the judge would have meted out had the

jury convicted Williams of the

sec.924(c)(1) charge. Because this is an

unusual case, the district judge has

discretion either way; but the record

must reveal that he understands and

exercises that discretion. When taking up

the issue a second time, the district

judge should think it through afresh,

rather than adopting a presumption in

favor of the existing sentence.

 Other issues have been considered but do

not require discussion. The principal

omitted contention--that the kind and

quantity of drugs must be treated as

elements of the offense under 21 U.S.C.

sec.841 in light of Jones v. United

States, 526 U.S. 227 (1999)--has been

resolved by an opinion issued after the

oral argument of this case. See Jackson,

207 F.3d at 920-21. See also United

States v. Edwards, 105 F.3d 1179 (7th

Cir. 1997), affirmed, 523 U.S. 511

(1998). We cannot close, however, without

expressing our appreciation to

appellants’ counsel for the care with

which they unraveled the threads of this

complex case and presented common issues

in a joint brief.

 The conviction of Robert Patterson is

reversed, and his case is remanded for a

second trial if the United States chooses

to pursue that option. The conviction of

Tyrone Williams is affirmed, but we

vacate his sentence and remand for

resentencing. All other judgments are

affirmed.