This opinion was released initially in typescript form. 

The Honorable Sandra Day O’Connor, Associate Justice of 

the United States Supreme Court (Ret.), sitting by designation

pursuant to 28 U.S.C. § 294(a).

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2516

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SIDNEY O. SELLERS,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 2:08-cr-00023-RL-APR-1—Rudy Lozano, Judge.

ARGUED MAY 18, 2010—DECIDED MAY 19, 2011

Before O’CONNOR , Associate Justice, and KANNE and 

ROVNER, Circuit Judges.
2 No. 09-2516

ROVNER, Circuit Judge. As part of a sting operation,

police officers and Drug Enforcement Administration

officers staked out Sidney Sellers’s car. When they pulled

the car over for traffic violations, they found a fully

loaded handgun registered in Illinois. Sellers, however,

was in Indiana. Upon arrest for possession of a handgun

without the requisite license, an inventory search of

Sellers’s car revealed several bags containing crack

cocaine. Sellers was charged with and convicted by a jury

of possession with intent to sell crack cocaine and possession of a firearm used in drug trafficking, and sentenced

to 180 months’ incarceration. In this court, Sellers

argues that the district court deprived him of his Sixth

Amendment right to choice of counsel by failing to

grant a continuance, that the court erred in denying

his motion to suppress evidence gathered pursuant to

the search of his vehicle, and that the government lacked

sufficient evidence at trial to prove him guilty beyond

a reasonable doubt of the drug offense. Because we

find that Sellers was indeed denied his Sixth Amendment right to counsel of his choosing, the judgment of the

district court is vacated and the case is remanded for

a new trial. We need not address Sellers’s other issues

presented for review.

I.

Our holding obviates the need to detail the facts surrounding Sellers’s criminal activity and arrest. Instead,

we focus on the particulars surrounding Sellers’s choice

and retention of counsel, and the district court’s response.
No. 09-2516 3

The parties have informed this court that they are unable to 1

provide transcripts of the proceedings before Magistrate

(continued...)

Sellers initially retained attorney David Wiener to

represent him against the drug and gun charges. Apparently, shortly after Sellers engaged Wiener, Wiener approached attorney Michael Oppenheimer and asked him

to appear as secondary counsel. R. 36, Tr. 5/9/08 at 10-11.

Oppenheimer, by all indications, was a stranger to Sellers,

having never been hired by him. Nevertheless, Oppenheimer filed an appearance, Wiener did not. Thus at

his probable cause and detention hearing on February 22,

2008, Sellers appeared with Oppenheimer alone. Oppenheimer appeared with Sellers again on March 13, 2008,

at his arraignment before Magistrate Judge Rodovich.

At that hearing, the magistrate judge set a deadline

of April 12, 2008, for pre-trial motions, April 25 for the

pre-trial conference, and May 12 for trial. The pre-trial

conference was later re-set to May 2, 2008 due to

Oppenheimer’s automobile trouble on April 25.

At the pre-trial conference on May 2, Oppenheimer

indicated that he would file imminently two motions—a

motion to suppress evidence and a motion to continue. The magistrate judge set dates requiring pre-trial

motions by May 6 and government responses by May 20.

The latter date fell eight days past the original trial

date, presumably anticipating that the district court

would grant the continuance. The magistrate judge indicated, nevertheless, that these dates were contingent

upon the district court’s grant of a continuance. On 1
4 No. 09-2516

(...continued)

Judge Rodovich on May 2, 2008, as they were held in chambers

and off the record. R. 36. We therefore have only the parties’

representations of what Magistrate Judge Rodovich said at

that hearing. After conferring with the magistrate judge, at a

later hearing, the district court judge stated on the record,

and Sellers’s counsel confirmed, that the magistrate judge

unequivocally informed the defendant that the dates he was

setting were contingent on the district court’s grant of a continuance. See R. 36, Tr. 5/9/08 at 5-6, 26-27.

May 5, the district court judge issued an order setting

a status conference for the following day. 

Oppenheimer filed his motion to suppress evidence

on May 6. The government immediately objected that

the motion was late, having not been filed within the

thirty days following the March 13 arraignment as originally ordered. The next day, Sellers filed his motion for

a continuance, which asserted first, that counsel had

filed the motion to suppress on May 6 in reliance on the

magistrate judge’s briefing schedule, and second, that

Sellers required a continuance to allow him to proceed

with his counsel of choice, David Wiener. R. 26 at 2.

That same day, May 7, the district court judge denied

both the motion for a continuance and the motion to

suppress evidence. In dismissing the motion to continue, the court explained that the case had been set

for trial since March 13, 2008, and that Sellers had filed

the motion for the continuance just three business days

before the scheduled trial date. The district court did

note that the magistrate judge had extended the dates
No. 09-2516 5

for filing, but stated that “Magistrate Rodovich gave the

dates for the filing of the motion to suppress and the

response contingent upon this Court granting a motion

to continue.” R. 30 at 2. The district court judge

also claimed to be “baffled” by the information that

David Wiener was lead counsel and counsel of choice

for Sellers. Wiener, the court noted, had yet to file an

appearance in the case, and Oppenheimer’s associate

had failed to mention a proposed change in counsel

when appearing at the status hearing. “Additionally,” the

district court judge wrote, “it is typically this Court’s

rule that new counsel take the case as they find it.” R. 30

at 2. Finally, the district court noted that Sellers’s

attorney had missed several filing deadlines and failed

to show good cause to file a late motion. In short, the

district court denied the motion for a continuance

and confirmed the trial date of May 12, 2008.

Oppenheimer appeared again with Sellers on May 9

and orally renewed his motion for a continuance. Wiener,

Oppenheimer explained, had been retained by Sellers

to act as lead counsel in the case and had informed

Oppenheimer that he would file his appearance shortly.

Wiener, however, was scheduled to begin a murder trial

in state court on May 12, the date Sellers’s trial was set

to start, and then a second murder trial on May 19. Consequently, because Oppenheimer had not intended to act

as lead counsel, and had not prepared adequately for

trial, and because Wiener was not available, Oppenheimer renewed his motion for a continuance. The court

again denied the motion but delayed the trial one week
6 No. 09-2516

as a courtesy to counsel, to allow the parties to brief the

motion to suppress. The new trial date of May 19, 2008,

was no better for Wiener, as he was scheduled to begin

his second murder trial in state court that day.

On May 12, at a pre-trial hearing, Oppenheimer again

appeared for Sellers, but informed the court that Wiener

would enter his appearance that day and that Wiener

was hopeful that he would be able to appear for trial on

May 19.

Sellers appeared before the district court judge again

on Friday, May 16, after he informed the court that he

wished to fire Oppenheimer. Sellers addressed the court

and announced first, that he had not chosen Oppenheimer

as his counsel, second, that he had retained Wiener, and

third, that because Wiener had never appeared, he had

been in contact with two additional attorneys, one of

whom he hoped to hire. The district court informed

Sellers that although he was free to fire Oppenheimer,

the court was unlikely to grant a continuance to allow

new counsel additional time to prepare for trial. Sellers

reiterated that he wished to fire Oppenheimer but reluctantly agreed to continue with him until he could be

assured that he had substitute counsel for trial.

On the scheduled date of trial, Monday, May 19, 2008,

Sellers appeared with both Oppenheimer and his newly

retained attorney, Santo Volpe. Each counsel and the

defendant addressed the court announcing his situation:

Sellers told the court, “I don’t want Mr. Oppenheimer

to represent me. We have too many differences on the

case. We don’t see eye to eye. We don’t get along.” R. 74,
No. 09-2516 7

Tr. 5/19/08 at 7. The new attorney, Volpe, reported

that he would file an appearance only if the court

would continue the case to allow him adequate time

to prepare for trial. Finally, Oppenheimer informed the

court that Sellers had fired him on Friday and hired

Volpe in his stead. The district court judge denied the

informal motion to continue, explaining that he had

already attempted to accommodate counsel by hearing

an untimely motion to suppress, by pushing back the

trial date from May 12 to May 19, and by cancelling

his attendance at a Seventh Circuit conference. The

court noted further that Sellers’s repeated promises

that Wiener would file an appearance never came to

fruition. The district court then instructed Sellers that

he was free to fire Oppenheimer (who, it is worth repeating, Sellers had never hired in the first place), but

that if another attorney did not enter his appearance

that day, Sellers would have to proceed to trial pro se.

Sellers ultimately agreed “under protest,” as he put it, to

continue with Oppenheimer as his counsel. R. 74, Tr.

5/19/08 at 8, 13. Following a three-day jury trial, Sellers

was convicted on all counts. He was later sentenced to

a term of imprisonment of 180 months. After unsuccessful post-trial motions, Sellers filed this appeal.

In this court, Sellers argues that the district court’s

refusal to grant him a continuance deprived him of his

Sixth Amendment right to choice of counsel. We agree

that Sellers was deprived of his Sixth Amendment right

and that he therefore is entitled to a new trial. 
8 No. 09-2516

II.

The Sixth Amendment grants a defendant the right to

assistance of counsel. United States v. Gonzalez-Lopez, 548

U.S. 140, 144 (2006). This includes the right, when the

defendant has the means to retain his own attorney, to

be represented by counsel of choice. Id. Consequently, a

court cannot arbitrarily or unreasonably deny a defendant

the right to retain chosen counsel. Carlson v. Jess, 526

F.3d 1018, 1024 (7th Cir. 2008). The right is separate

from the generalized due process right to a fair trial, and

thus the deprivation of the right is complete when the

defendant is erroneously denied counsel of choice.

Gonzalez-Lopez, 548 U.S. at 148. Such a denial constitutes

structural error and justifies reversal without inquiry

into prejudice. Id. at 150.

The right to counsel and the right to engage counsel

of one’s choosing, however, are not absolute. A court

retains wide latitude to balance the right to choice of

counsel against the needs of fairness to the litigants and

against the demands of its calendar. Gonzalez-Lopez, 548

U.S. at 152; United States v. Smith, 618 F.3d 657, 666 (7th

Cir. 2010); United States v. Carrera, 259 F.3d 818, 824-25

(7th Cir. 2001). This means, of course, that trial courts

have broad discretion to grant or deny a request for a

continuance to substitute new counsel. Carlson, 526 F.3d

at 1025. “Only an unreasoning and arbitrary insistence

upon expeditiousness in the face of a justifiable request

for delay” violates the Sixth Amendment right. Carrera,

259 F.3d at 825. In determining whether the decision

was arbitrary, we consider both the circumstances of
No. 09-2516 9

Interestingly, the court denied the motion for a continuance 2

to substitute new counsel in part because of the failings

of counsel. Under this reasoning, a defendant whose lawyer

fails to comply with the court’s deadlines will be saddled

with his ineffective counsel precisely because the lawyer is

ineffective. 

the ruling and the reasons given by the judge. United

States v. Santos, 201 F.3d 953, 958 (7th Cir. 2000).

In its May 7 order, the district court offered three primary explanations for its initial denial of a continuance.

First, the motion was filed past the deadline for pretrial motions set by the magistrate judge and only days

before trial. R. 30 at 1-2. Second, Sellers’s preferred

counsel had not yet filed an appearance and even if

he had, the court would follow its own rule that if

a defendant wishes to hire a new lawyer, that “new

counsel take the case as they find it.” R. 30 at 2. Third,

Oppenheimer had repeatedly missed other deadlines

in the matter. Id. 2

After the court issued the order, Oppenheimer renewed

his motion orally before the court during pre-trial hearings. In sticking with his original denial, the district court,

from the bench, offered several additional explanations

for denying the continuance. These included the fact

that the court had already accommodated the defendant

by moving the case back one week, the government had

timely turned over discovery, the case was not complex,

the judge had cancelled his attendance at the Seventh

Circuit judicial conference, the delay of the trial would

affect other cases in need of trial dates, and that he was
10 No. 09-2516

responding to the propensity of other Illinois counsel to

request last minute continuances.

To determine whether the decision was arbitrary, we

consider the reasons for denial articulated by the district

court judge. See Santos, 201 F.3d at 958. We begin with the

court’s repeated statement—reiterated four times—that

the continuance would be denied, in part, because “it is

typically this Court’s rule that new counsel take the case

as they find it.” R. 30 at 2. See also R. 74, Tr. 5/19/08 at 5;

R. 36, Tr. 5/16/08 at 4, 26. This is not, however, the rule

in this Circuit. Quite the opposite. The Sixth Amendment demands that a district court may not arbitrarily

and unreasonably deny a continuance to provide for

choice of counsel. Carlson, 526 F.3d at 1024. Adhering to

a rigid rule that “a lawyer must take the case as he finds

it” is exactly the type of arbitrary rule that the Sixth

Amendment prohibits. See id. at 1026. Thus a myopic

insistence on proceeding with a scheduled trial date in

the face of a valid request for a continuance is arbitrary

and unreasonable. United States v. Miller, 327 F.3d 598,

601 (7th Cir. 2003).

But what of the district court’s other explanations for

the denial? The district court seemed particularly concerned about the “eleventh-hour” filing for a continuance

and the related fact that Sellers’s attorney had missed

the deadlines for other pre-trial filings. See R. 30 at 1

(criticizing the 11th hour motion); R. 36, Tr. 5/9/08 at 15-16,

20 (same); R. 36, Tr. 5/16/08 at 18 (same); R. 74, Tr. 5/19/08

at 12 (same); R. 30 at 2-3 (criticizing counsel for ignoring

other pretrial filing deadlines); R. 36, Tr. 5/9/08 at 31, 34
No. 09-2516 11

(same); R. 74, Tr. 5/19/08 at 10 (same). A district court,

after all, has a legitimate interest in ensuring that parties

abide by scheduling orders to ensure prompt, orderly, and

fair litigation. Campania Mgmt. Co., Inc. v. Rooks, Pitts &

Poust, 290 F.3d 843, 851 (7th Cir. 2002). Even where

Sixth Amendment rights are at stake, a district court

legitimately can balance the right to counsel of choice

against the demands of its calendar and make scheduling

and other decisions that effectively exclude chosen

counsel. Gonzalez-Lopez, 548 U.S. at 152. The key, however, is whether the court has indeed balanced those

interests, or instead has acted arbitrarily.

It is through this lens that we view the district court’s

explanation that the defendant’s motion for a continuance came too late. Oppenheimer filed the first motion

for a continuance on May 7, 2008, five days (three

business days) before the originally scheduled May 12

trial date. This fact, the government says, distinguishes

Sellers’s case from one upon which the defendant heavily

relies—Carlson, 526 F.3d at 1018. In Carlson, this Circuit

found that the court had denied a defendant his Sixth

Amendment right to counsel of choice when he

requested new counsel four days prior to trial. “Most

notably, in Carlson,” the government says, “the defendant

filed his motion one week before trial . . . . In contrast,

Sellers failed to file his first written motion for [a] continuance until three business days before trial was scheduled to begin.” (Government brief at 22-23). This juxtaposition is confounding. In fact, both Carlson and Sellers

filed their motions at approximately the same point in

litigation—in Carlson’s case, on August 23, just four
12 No. 09-2516

days (and two business days) before the scheduled

August 27 trial. Carlson, 526 F.3d at 1020. Sellers, on the

other hand, filed his motion five days (three business

days) prior to trial. In reviewing the Carlson case, this

court found that the timing of Carlson’s motion was

understandable as he had filed his motion to substitute

immediately after he retained new counsel, he had

never requested substitute counsel previously, he had

no history of gaming the system, and the time since

arraignment was “relatively short.” Carlson, 526 F.3d

at 1026. The court also noted that the case was relatively

simple and would not require a lengthy trial nor many

witnesses. The same can be said for Sellers on all counts

(in fact, the time from Sellers’s arraignment to the scheduled trial date was only sixty days—shorter by more

than a third than Carlson’s ninety-nine days). See also

Santos, 201 F.3d at 958-59 (two-and-a-half months from

indictment to trial was not, among other reasons, a

reason to deny a continuance). Like Sellers, Carlson

informed the court that communication between his

lawyer and himself had completely broken down and

that they could not agree on an approach to the defense.

Carlson, 526 F.3d at 1027. If there is any difference at all,

it is that Carlson remained in custody while his case

was pending whereas Sellers was released on bond.

Although this may have given Sellers incentive to delay

his trial, there is no evidence in the record that his

request to delay the trial in order to accommodate the

appearance of his counsel of choice was filed in an

attempt to postpone incarceration. To the contrary, this

was the first and only motion for a continuance that
No. 09-2516 13

Sellers filed prior to trial, and there was an abundance

of evidence that, from day one, Sellers had been represented by a lawyer he never chose.

We look, however, not just at how close to trial the

request came, or how long it has been since the arraignment, but rather, as the court did in Carlson, we look at

the whole of the circumstances surrounding the last

minute filing. See also Smith, 618 F.3d at 666 (looking at

the court’s comments, taken as a whole); Santos, 201 F.3d

at 958 (“the appellate court must consider both the circumstances of the ruling and the reasons given by the

judge for it”). At arraignment, the magistrate judge ordered all pretrial motions to be filed within thirty days

of the March 13, 2008 arraignment (i.e., on April 12, 2008),

and set a trial date for May 12, 2008. As of the pre-trial

conference on May 2, 2008, Oppenheimer had not filed

any pre-trial motions on Sellers’s behalf. On that date,

Oppenheimer informed the magistrate judge that he

was not counsel of choice and that he would file a

motion for a continuance to give Sellers’s chosen counsel

the opportunity to file an appearance and prepare for

trial. In light of that information, the magistrate judge

extended the deadlines for filing motions, contingent on

the district court’s grant of the continuance. Oppenheimer,

apparently expecting Wiener to replace him at any moment, failed to file the pre-trial motion to suppress by

the original April 12 date. He also failed to file his proposed jury instructions, proposed voir dire, and joint

statement of the case as originally required, errantly

relying on the magistrate’s judge’s contingent extension.
14 No. 09-2516

There is no doubt that Oppenheimer was at fault for

missing deadlines while waiting for Wiener to appear,

and for incorrectly relying on the magistrate judge’s

contingent extension. But a court that sacrifices a Sixth

Amendment right without viewing the circumstances of

the case as a whole acts arbitrarily. When viewed

through the lens of the case as a whole, we see that

Oppenheimer assumed from the get-go that Wiener

would be taking the helm. Wiener asked Oppenheimer

only for his assistance as second chair. R. 36, Tr. 5/9/08 at 9-

12. Although this does not justify Oppenheimer’s failure

to meet the court’s deadlines, it does provide some evidence that Oppenheimer did not fail to prepare the case

for trial and seek a continuance as a delay tactic or for

other illegitimate reasons, but rather he delayed preparation in true anticipation that Wiener would step in as

he apparently had promised. Oppenheimer appeared to

be counting on Wiener’s appearance until the bitter end.

See R. 36, Tr. 5/9/08 at 11 (“It is my understanding, Judge,

that Mr. Wiener’s appearance has not yet been filed,

although he plans on filing his appearance”); R. 36, Tr.

5/12/08 at 3 (“The Court: you were advised that he was

going to enter an appearance today? Mr. Oppenheimer:

That’s correct, your Honor.”); Id. at 8 (“The Court:

Mr. Wiener is still going to enter an appearance you

thought today some time? Mr. Oppenheimer: Yes.”); R. 36,

Tr. 5/16/08 at 22 (“The Court: As late as this week did

Mr. Wiener tell you he was going to appear. Sellers: Yes.”).

Moreover, although it is true that the district court

admonished Oppenheimer to prepare for trial, it issued

that warning on the Friday prior to a Monday trial.
No. 09-2516 15

R. 36, Tr. 5/16/08 at 27. The district court advised,

“Mr. Oppenheimer, I suggest that you get ready for trial on

Monday until such time as you are terminated, if you are

terminated.” Id. (emphasis supplied). In fact, Sellers

contacted Oppenheimer later that very day to fire him.

R. 74, Tr. 5/19/08 at 8-9. In short, it does not appear

that Sellers was attempting to delay his trial or game

the system. See Carlson, 526 F.3d at 1026; Santos, 201 F.3d

at 959.

The district court spoke generically of how continuances burden other litigants and the court’s calendar.

R. 36, Tr. 5/12/08 at 4; R. 74, Tr. 5/19/08 at 11. But the

fact that the district court failed to inquire of either

Oppenheimer, or later Volpe, how long substitute

counsel would need to prepare adequately for trial evidences a failure to actually balance the right to choice

of counsel against the needs of fairness, and suggests

that the district court unreasonably viewed any delay

as unacceptable. See United States v. Williams, 576 F.3d

385, 390 (7th Cir. 2009) (“The failure to inquire how long

the defense needs to prepare suggests that the district

court unreasonably considered any delay unacceptable:

That sort of rigidity can only be characterized as arbitrary.”); see also Carlson, 526 F.3d at 1026. A district court’s

schedule, although a significant consideration, does not

automatically trump all other interests. Smith, 618 F.3d

at 666. As this court has noted, trial dates frequently

open when cases settle and defendants plead. Carlson,

526 F.3d at 1026. Although the district court had a two-tothree week political corruption trial set to begin May 26

(i.e., a week after Sellers’s trial began) (R. 36, Tr. 5/9/08 at

22-23), even the inconvenience of pushing a trial back a
16 No. 09-2516

month or so can easily be outweighed by a defendant’s

interest in having counsel of choice. See Carlson, 526 F.3d

at 1026.

The record provides no evidence that the court balanced

any of these circumstances against the needs of fairness

and the demands of its calendar. See Gonzalez-Lopez, 548

U.S. at 152. It seems instead that the court stood on unyielding principle—the principle that new counsel must

“take the case as he finds it”; the principle that continuances will not be granted for those who request them at

the eleventh-hour and miss other deadlines; and the

principle that delay of one case will unfairly backlog

other cases. 

In addition to the more compelling “eleventh-hour” and

court scheduling rationales articulated by the district

court, its opinion and oral rulings are riddled with indications of generalized annoyance with defendant’s

counsel that smack of an arbitrary application of the rule

as retribution for both counsel’s own errors, and the

errors of others. Most strikingly, the district court confessed:

I also ran into the problem where there were other

cases with Illinois counsel, who just happened some

were Illinois counsel, and they were counsel that

were appearing at the 11th hour and asking for continuances because of new counsel. So if I got excited

with you, that was one of the reasons you caught

my wrath because of the dilemma that was being

caused by that.
No. 09-2516 17

The district court judge later conceded that Oppenheimer had 3

a “well founded” excuse for missing the status conference

to attend a previously scheduled hearing in New Mexico.

R. 36, Tr. 5/9/08 at 13.

R. 36, Tr. 5/12/08 at 5. There can be no more arbitrary

and unreasonable application of a rule than as punishment for the missteps of another lawyer in an unrelated

case. There were plenty of other indications that the

court was simply annoyed with Oppenheimer. The court

appeared to disbelieve everything from Oppenheimer’s

claim of car trouble at one status hearing to his scheduled

appearance on another out-of-state matter. See, e.g., R. 30

at 2 (“Oppenheimer failed to appear at the first pretrial

conference in front of Magistrate Rodovich, claiming car

trouble”); R. 30 at 3, (“Oppenheimer now claims to be

in New Mexico on a matter, but does not explain why

this takes precedence to a trial, or why he was not prepared.”) The district court judge even complained that 3

he “canceled in part for this case my attendance at the

Seventh Circuit Judicial Conference, which is being held

in Chicago today,” R. 74, Tr. 5/19/08 at 7, and finally,

that he had already “spent a substantial amount of time

getting ready for this case over the weekend and in the

last few weeks.” Id. at 12; R. 36, Tr. 5/9/08 at 20.

We reiterate that a court certainly may consider how

last minute continuances and missed deadlines tread

upon the rights of parties and the demands of a court’s

calendar. The key, however, is that these legitimate considerations must be balanced against the reasons in

support of the motion for a continuance to accommodate
18 No. 09-2516

It was clear that he was not prepared to give an opening 4

statement that day, as it was less than one page of transcript

(250 words) and failed to present any coherent theory of the

case. R. 74, Tr. 5/19/08 at 177-78.

new counsel. Carlson, 526 F.3d at 1026-27. Here, the court

failed in its duty to look also at the other side of the

scale and to weigh Sellers’s rationale for terminating

Oppenheimer. The court ought to have considered the

fact that Oppenheimer had never been Sellers’s counsel

of choice (R. 36, Tr. 5/16/09 at 23). This was not a case

where a defendant hired one counsel and then later

changed his mind. More importantly, communication

between Sellers and Oppenheimer had completely deteriorated. R. 74, Tr. 5/19/08 at 7 (“I don’t want

Mr. Oppenheimer to represent me. We have too many

differences on the case. We don’t see eye to eye. We don’t

get along.”). Furthermore, the court must have known

that Oppenheimer was unprepared for trial. The court

had informed Oppenheimer that he should prepare for

trial until such time as he was terminated. R. 36, Tr. 5/16/08

at 27. But Oppenheimer made clear to the court that he

was informed on the Friday before the Monday trial that

he had been fired. R. 74, Tr. 5/19/08 at 8-9. In fact

Oppenheimer was apparently so certain that he was

terminated that he had made arrangements to appear in

another courthouse in another matter on the date set for

Sellers’s trial, and had to call his office from Judge

Lozano’s courtroom to arrange for another lawyer to

appear. R. 74, Tr. 5/19/08 at 17.4

The district court also had the duty to consider that

Sellers’s new counsel and counsel of choice, Volpe, in-
No. 09-2516 19

formed the court that “I would be doing a great, great

disservice to Mr. Sellers if I attempted to try this case

this week.” R. 74, Tr. 5/19/08 at 12. Furthermore, Sellers

made it clear that he was not prepared to proceed pro se.

“Well, Your Honor, I can’t represent myself.” Id. at 7.

Thus the court knew that Sellers was left with

three choices: First, he could opt for a lawyer, not of his

choosing, who, although somewhat familiar with the

case, was unprepared for trial, and with whom he

could not get along or agree. Second, he could pick a

lawyer of his choice who was completely unfamiliar

with his case and wholly unprepared for trial; or third,

he could represent himself, again without any time to

prepare for trial or study the law. Sellers’s reasons for

needing a continuance were facially valid, yet the

district court failed to explore them or balance them

against the legitimate reasons for denying the motion

for a continuance. See Carlson, 526 F.3d at 1026-27.

The government argues that Sellers’s case is similar to

United States v. Carrera, where this court upheld the

trial court’s denial of a continuance for substitution of

counsel made in the days just prior to trial. Id. 259 F.3d

818 (7th Cir. 2001). The government ignores the fact that,

because Carrera’s proposed new attorney never actually

appeared to move for a continuance, the district court

could not engage in the exact type of balancing that is

essential before deciding whether a continuance is warranted. Id. at 825 For this reason, Carrera’s lawyer’s
20 No. 09-2516

Carrera’s attorneys filed an emergency motion to withdraw 5

noting that Carrera had terminated their representation.

Carrera’s new counsel, however, did not appear and never

filed a motion to continue or for substitution of counsel.

Carrera, 259 F.3d at 822-23.

motion to withdraw as counsel was denied. Carrera, 259

5

F.3d at 825 (“[B]ecause his attorney never moved for a

continuance, we do not know if the government would

have opposed the motion, if the judge had a scheduling

conflict, or if a continuance would have caused hardship

to any of the parties.”).

Under Gonzalez-Lopez, this constitutional violation

constitutes a structural error not subject to review for

harmlessness. Id., 548 U.S. at 148-49, 152. It is impossible

to know what different choices, if any, Wiener or Volpe

would have made in how they approached the pre-trial

motions, how they defended Sellers at trial, and what

impact those differences might have had on the outcome

of the proceedings. Id. at 150. The error affected the

framework of the trial and pre-trial proceedings and

denied Sellers his Sixth Amendment right to choice

of counsel.

As a final matter, on May 9, 2011, Sellers moved this

court for a temporary release on bond pending appeal.

That motion to this court is now moot, but in light of the

exigent situation regarding Sellers’s mother and her

declining health, the district court shall construe that

motion as one made to it and shall decide the motion

with all due haste.
No. 09-2516 21

The judgment and sentence below are VACATED, and

this case is REMANDED for a new trial, including all pretrial proceedings. The mandate shall issue immediately.

6-2-11