In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2109

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVID A. COMBS,

Defendant-Appellant.



Appeal from the United States District Court
for the Southern District of Illinois, Benton Division.
No. 98 CR 40044--J. Phil Gilbert, Chief Judge.


Argued November 30, 1999--Decided July 25, 2000




      Before MANION, KANNE and ROVNER, Circuit Judges.

      ROVNER, Circuit Judge. David A. Combs was
charged with possession with intent to distribute
methamphetamine, in violation of 21 U.S.C. sec.
841(a)(1). The district court granted a mistrial
sua sponte during Combs’ first trial, when the
court discovered that his attorney had possibly
represented the prosecution’s key witness against
him. With new counsel for both Combs and the
witness, a second trial commenced. A jury
ultimately convicted Combs, and the court
sentenced him to 192 months of imprisonment.
Combs appeals, contending that his second trial
was held in violation of the double jeopardy
clause of the Fifth Amendment, that the dismissal
of his original counsel violated his Sixth
Amendment right to counsel, that the court erred
in granting the mistrial sua sponte, that the
court erred in failing to suppress his
confession, and that the government failed to
produce sufficient evidence to allow a rational
jury to find him guilty beyond a reasonable
doubt. We affirm.

I.

      On March 11, 1998, the California Airport
Authority Drug Task Force intercepted a
suspicious package that had been mailed by "Bill
Combs" from a Mail Boxes Etc. store in California
to Shawn Temelcoff in Mount Vernon, Illinois.
After obtaining a search warrant for the package,
the Task Force officers discovered it contained
a large quantity of methamphetamine. The Task
Force contacted the Mount Vernon police
department, and arranged a controlled delivery of
the package to Temelcoff. Temelcoff accepted the
package, and the Mount Vernon police then
executed an anticipatory search warrant on her
home. They found the package unopened in
Temelcoff’s bedroom. The officers interviewed
Temelcoff and learned that she did not know what
was in the package, but that it had been mailed
to her by David Combs. She was involved in a
romantic relationship with Combs, who had called
her recently to tell her that a package was on
the way. Combs asked that she hold the package
until he arrived, and directed her not to open
it. Temelcoff and Combs met regularly on the
night of the full moon, and Combs told Temelcoff
he would be arriving on the evening of the next
full moon to pick up the package. Temelcoff
relayed all of this to the police, who arranged
to be present for Combs’ next moonlit visit.

      On the evening of March 12, 1998, officers
hidden in Temelcoff’s home heard Combs arrive and
ask Temelcoff for the package. Combs told
Temelcoff he had been worried sick about sending
it. As he left Temelcoff’s home with the package
in his hands, Combs was arrested by federal drug
enforcement officers. He was transported to the
Mount Vernon Police Department where, prior to
questioning him, Officers Randall Nodolski read
Combs his rights, using a Miranda waiver form.
When Officer Nodolski informed Combs that
anything he said could be used against him, Combs
replied that if the officers wanted to use his
statement against him, Combs might need a lawyer.
In response to this equivocal statement, Officer
Nodolski again read the form to Combs and asked
him if he understood his rights. Combs indicated
that he understood his rights and wanted to speak
to the officers "off the record." Thereafter he
made an incriminating statement to the officers
regarding his involvement with the package
containing methamphetamine. As he made the
statement, one of the officers took notes of
everything Combs said. At no point in the
interrogation did Combs explicitly ask for an
attorney. At no point did the officers agree that
the statement would be off the record.

      Combs’ first trial commenced on September 28,
1998. On the first morning of trial, after the
first two government witnesses testified, the
court learned from the government that Combs’
attorney, James Proffitt, had involved himself in
the defense of Shawn Temelcoff, who, not
surprisingly, turned out to be one of the
government’s key witnesses. Temelcoff had not
been charged with anything, but after Proffitt
interviewed her about her potential testimony, he
procured a lawyer for her. Combs’ mother paid
Temelcoff’s legal fees, and the payments were
arranged by and funneled through Proffitt. Combs’
mother was paying her son’s legal fees as well,
and the court became concerned that the same
source was paying the legal fees for both the
defendant and the key witness against him. The
court, on learning these facts, appointed a new
attorney for Temelcoff. The next day, the court
addressed Combs and Proffitt directly in open
court. At that time, Proffitt admitted that he
advised Temelcoff that she needed an attorney and
that he offered to arrange for Combs’ mother to
cover the cost. He introduced an attorney, Monroe
McWard, to Temelcoff, arranging a meeting at a
restaurant for them. McWard subsequently sent
Proffitt the retainer agreement that Temelcoff
signed. Proffitt deposited a check from Combs’
mother into his own business account and then
wrote a check to McWard from that same account.
Proffitt admitted that he knew that at some
point, Combs’ interests would conflict with
Temelcoff’s and that Temelcoff would take the
witness stand. He related to the court that when
he first met with Temelcoff, he told her that
"she had to tell the truth no matter what." Tr.
at 183. He admitted he spoke to her at the lunch
break on the first day of the trial, and told her
again that "she had to tell the truth. No matter
what she might have wanted, no matter how they
wanted things to come out, it didn’t make any
difference. She must tell the truth." Tr. at 183.
Proffitt told the court that he believed
Temelcoff was so intimidated and frightened at
that point that she would say whatever she
thought she had to say to save her neck. Proffitt
thought under the circumstances that Temelcoff
should not be permitted to testify.

      Based on these admissions, the court explained
to Combs the potential conflict presented by
Proffitt’s involvement with Temelcoff and McWard.
The district court noted that a mistrial would be
necessary if Combs declined to waive any
conflicts. After consulting with Proffitt, Combs
refused to waive the conflict, stating "I don’t
want to waive nothing, but I do want him to
represent me," insisting that Proffitt remain his
lawyer./1 Tr. at 192. The court then declared a
mistrial, dismissed Proffitt as counsel for
Combs, and rescheduled the trial.

      Combs moved to dismiss the indictment,
contending that a retrial was barred by the
double jeopardy clause of the Fifth Amendment.
The district court found that Proffitt involved
himself in Temelcoff’s legal assistance by
recommending and then procuring legal
representation for her, and by arranging for
payment of Temelcoff’s legal fees by Combs’
mother. Proffitt’s conduct in dealing with this
adverse witness would have possibly violated
several rules of professional conduct, according
to the district court, including Illinois Rules
of Professional Conduct 1.2, 1.7, 3.4 and 4.3.
The court found that considering the
circumstances as a whole, Proffitt’s conduct
compromised Combs’ right to conflict-free
representation and impermissibly tainted any
trial outcome. In particular, the court found
that Proffitt had given legal advice to
Temelcoff. Because of the nature and level of
Proffitt’s involvement with Temelcoff, the court
was concerned that Proffitt may have been
ethically constrained in his cross-examination of
Temelcoff at Combs’ trial. The court also
determined that Proffitt’s conduct called into
question the integrity of the court, and gave
rise to a possible attack on the basic fairness
of the proceeding. Specifically, the court was
concerned that by allowing Combs to go forward
with Proffitt as his attorney, Combs would have
a built-in appealable issue about his Sixth
Amendment right to conflict-free counsel. See
January 25, 1999 Order; Tr. at 164-196.

      The court found that Combs refused to waive
potential conflicts, even though the court had
admonished him that his refusal to waive the
conflicts would result in a mistrial. The court
found that Combs did not object to the mistrial,
either before or after the court declared the
mistrial, and he therefore impliedly consented to
the court’s ruling. The district court framed the
issues for analyzing Comb’s double jeopardy claim
as threefold: whether the mistrial was proper,
whether Combs objected, and if he did object,
whether the mistrial declaration was based on
manifest necessity. The court held that the
mistrial was proper because Proffitt’s conduct
tainted the judicial proceedings in a way that
undermined both the public’s and the defendant’s
interest in a fair trial. This taint was caused
by Proffitt’s misconduct, and the taint affected
the proceedings to such an extent that it
outweighed Combs’ interest in having the counsel
of his choice and in having the impaneled jury
decide his case. The court found further that had
it failed to declare a mistrial, Combs would have
an opportunity on appeal to have his conviction
reversed because of his counsel’s conflict of
interest and misconduct. Moreover, Combs
impliedly consented to the mistrial by failing to
object when given the opportunity, and thus the
mistrial was appropriate. The district court
acknowledged that had Combs objected, retrial
would have been prohibited by the double jeopardy
clause unless there was a manifest necessity for
declaring the mistrial. The district court found
that even if Combs had objected, the mistrial was
manifestly necessary because of the taint in the
proceedings that undermined the ends of justice
and because Combs would have had an opportunity
on appeal to challenge his conviction on the
ground that his attorney was under a conflict of
interest. Therefore, the district court denied
the motion to dismiss the indictment, and Combs
proceeded to the second trial. That second jury
convicted Combs and the district court sentenced
him to 192 months of imprisonment. Combs appeals.

II.

      Combs raises four challenges to his conviction.
First, he argues that his second trial violated
the double jeopardy clause of the Fifth Amendment
because the mistrial was not manifestly
necessary. Second, he contends that the district
court’s dismissal of his trial counsel violated
his Sixth Amendment right to the counsel of his
choice because the conflict of interest noted by
the district court was too remote or minimal to
justify the dismissal. Third, he claims that his
confession should have been suppressed because he
made incriminating statements to the police
before he was given his Miranda rights. Finally,
he complains that the evidence at trial was
insufficient to convict him of possession with
intent to distribute methamphetamine because the
government lacked evidence that he distributed or
intended to distribute the methamphetamine in his
possession.

A.

      The double jeopardy clause bars retrial unless
the district court’s mistrial declaration was
occasioned by manifest necessity or consented to
by the defendant. Camden v. Circuit Court of the
Second Judicial Circuit, Crawford County,
Illinois, 

, 614 (7th Cir. 1989),
cert. denied, 

(1990). We turn first
to the question of whether Combs consented to a
mistrial. Either express or implied consent will
suffice to overcome the bar to retrial so long as
there is no governmental or judicial conduct
intended to goad the defendant into assenting.

. Here, the court
addressed Combs directly after determining that
Proffitt labored under the appearance of a
conflict if not an actual conflict of interest.
The court gave Combs an opportunity to consult
with Proffitt, and then asked if he would waive
his right to conflict-free representation. Combs
refused to waive that right, and told the court
he nonetheless wished to have Proffitt represent
him. The court then declared a mistrial and
dismissed Proffitt. Neither Combs nor his
attorney objected to the mistrial declaration.
Combs asked for clarification of what his
attorney had done wrong, and the court explained
again that Proffitt had given legal counsel to
Temelcoff, the government’s key witness against
him, and that this representation of the main
witness against Combs created a conflict of
interest. The court clarified that because of
this conflict, the court would not allow Proffitt
to continue to represent Combs, and that without
a waiver, the court intended to start a new trial
in two to three months with new counsel for
Combs. The court asked Combs if he understood,
and Combs indicated that he did. Proffitt made no
statement other than to inform the court that
Combs could find new counsel "within a couple of
weeks." Neither Proffitt nor Combs indicated any
disagreement with the declaration of a mistrial.

      Nonetheless, we are reluctant to construe this
silence as consent to a mistrial under these
unusual circumstances. At the time when he could
have registered an objection to the mistrial,
Combs was represented by an attorney who had
engaged in the conduct giving rise to the
mistrial. The district court found that it could
not proceed unless Combs waived his right to
conflict-free representation, and Combs refused
to waive that right. We cannot construe his
silence against him under those circumstances.
Furthermore, Combs stated emphatically that he
did not want to waive any of his rights, and this
statement could serve as a layman’s objection to
the mistrial. Nor may we construe Proffitt’s
silence as consent to the mistrial because
Proffitt quite possibly labored under a conflict
of interest and had created the very situation
giving rise to the mistrial. Finally, both
Proffitt and Combs vigorously objected to
Proffitt’s dismissal, and once Proffitt was
dismissed, they had no viable objection to the
mistrial itself. Obviously, the trial could not
go forward until Combs secured a new attorney.
Under these circumstances, we will construe
Combs’ objection to the dismissal of his attorney
as his objection to the mistrial declaration.

      We turn then to manifest necessity. We judge
manifest necessity by examining the reason for
the mistrial itself, and not the event that
triggered the mistrial. United States v.
Buljubasic, 

, 1265 (7th Cir. 1987),
cert. denied, 

(1987). In this case,
for example, it was obviously not manifestly
necessary for Proffitt to represent both the
defendant and the star witness against him. The
question is whether the mistrial itself was
manifestly necessary once the court determined
that Proffitt engaged in that questionable
conduct. Our discussion of consent lays out the
Catch 22 in which the district court found
itself. Because of Proffitt’s conduct, the
validity of the verdict would have been in
question whether or not the court allowed
Proffitt to continue his representation of Combs.
If the court dismissed Proffitt, Combs could
complain that he was denied the counsel of his
choosing. If the court accepted Combs’ waiver of
his right to conflict-free representation, Combs
could complain that the waiver was invalid and
his counsel was ineffective. The court was also
concerned about the fact that Combs’ mother was
funding legal representation for her son and for
the star witness against him. Adding to the
court’s apprehension was the fear that Proffitt
would be ethically constrained in cross-examining
Temelcoff because he had previously given her
legal advice. As the district court aptly noted,
"[t]he situation, you know, smells to high
heaven." Tr. at 189.

      Under the manifest necessity standard, a court
may declare a mistrial only if a "scrupulous
exercise of judicial discretion leads to the
conclusion that the ends of public justice would
not be served by a continuation of the
proceedings." 

(quoting
United States v. Jorn, 

, 485 (1971)).
The Supreme Court has described the "ends of
public justice" as "the public’s interest in fair
trials designed to end in just judgments."
Illinois v. Somerville, 

, 463 (1973)
(quoting Wade v. Hunter, 

, 689
(1949)). Whether this standard can be met must be
determined on a case-by-case basis. 

. Here the district court found that
the proceedings had been tainted by the conduct
of the defendant’s lawyer. The court concluded
that this misconduct opened the door to a
reversal on appeal under either of the two
theories described above.

A trial judge properly exercises his discretion
to declare a mistrial if . . . a verdict of
conviction could be reached but would have to be
reversed on appeal due to an obvious procedural
error in the trial. If an error would make
reversal on appeal a certainty, it would not
serve the "the ends of public justice" to require
that the Government proceed with its proof when,
if it succeeded before the jury, it would
automatically be stripped of that success by an
appellate court.

. We agree with the
district court’s assessment that this was such a
case. Once Combs refused to waive his right to
conflict-free representation, it served no
purpose to proceed to a verdict that would surely
be overturned on appeal. United States v.
Cyphers, 

, 1068 (7th Cir. 1977),
cert. denied, 

(1977) (even where a
reversal was not a certainty, the defendant’s
ability to present a sufficiently meritorious
claim for reversal may support a trial judge’s
decision that the ends of public justice would be
better served by a mistrial). Finally, even
though Combs did not request the mistrial and did
not consent to it, "the mistrial was surely
ordained for his benefit. He can hardly complain
that he was ’penalized’ by the district court’s
vigilant regard for his right to a fair trial."

./2 Therefore, we
affirm the district court’s judgment that the
mistrial was occasioned by manifest necessity.
The retrial was thus not barred by the double
jeopardy clause.

B.

      As the district court predicted, Combs’ next
challenge is based on his Sixth Amendment right
to the counsel of his choosing, a right he claims
was violated when the court dismissed Proffitt
and required him to proceed with new counsel. We
review for abuse of discretion the district
court’s decision to remove Proffitt from his
representation of Combs. United States v. Spears,

, 275 (7th Cir. 1992). Although every
defendant has a right to the attorney of his
choosing, that right is not absolute. United
States v. Vasquez, 

, 261 (7th Cir.
1992). The Sixth Amendment also entitles
defendants to representation by an attorney
unfettered by any conflict of interest. United
States v. Lowry, 

, 59 (7th Cir. 1992).
Even when a defendant is willing to waive a
conflict of interest, a court has an independent
duty to balance the right to counsel of choice
with the broader interests of judicial integrity.

. The court is required
to take action to protect the defendant’s right
to effective assistance of counsel unless, after
inquiry, the court believes that a conflict of
interest is unlikely to arise. Id.; 

(Sixth Amendment right to counsel of
defendant’s choosing and right to conflict-free
representation may at times clash with each
other).

      This situation arises most often in the context
of a single attorney representing co-defendants,
but we think the principles are equally
applicable here where Temelcoff was the primary
witness against Combs, and was herself implicated
by having accepted delivery of the package of
drugs at her home. 

-60.
Generally, a defendant may not insist on the
counsel of an attorney who has a previous or
ongoing relationship with an opposing party.
Wheat v. United States, 

, 159 (1988).
Joint representation is suspect because ethical
constraints may prevent the attorney from
vigorous defense of the client. 

. For example, a conflict may prevent an
attorney from challenging admission of evidence
prejudicial to one client but perhaps favorable
to another. The conflict may hamper the attorney
at sentencing from arguing that one client is
less culpable than another. 

. Or, as the court feared in Combs’ case, a
conflict may prevent an attorney from vigorously
cross-examining one client to the detriment of
another. The court must determine this potential
for conflicts not with the luxury of hindsight
but in the murkier context of the pre-trial
proceedings, or, as happened in this case, during
the trial itself. See 

.

      Here the district court carefully detailed the
potential for a conflict, and the taint in the
fairness of proceedings occasioned by Proffitt’s
conduct. The court found that Proffitt advised
Temelcoff to hire an attorney, that he located an
attorney for her and that he arranged to have the
defendant’s mother pay for that attorney.
Moreover, the court found that the fees to pay
Temelcoff’s attorney were funneled through
Proffitt, and that Proffitt advised Temelcoff to
testify truthfully at trial. The court
anticipated from the opening statements that
Combs’ defense was going to be that the drugs
belonged to Temelcoff, and that Temelcoff was
going to testify that the drugs belonged to
Combs. In combination with the fact that Combs’
mother paid for both her son’s lawyer and the
lawyer representing the chief witness against
him, the court found that the appearance of a
conflict if not an actual conflict clouded
Proffitt’s representation of Combs. The court
carefully explained the nature of the conflict to
Combs in open court, and Combs refused to waive
his right to conflict-free representation.

      Combs cannot have it both ways. He now claims
there was no conflict sufficient to deprive him
of the attorney of his choice, and yet he refused
to waive any conflict when given the opportunity.
We cannot say that the district court abused its
discretion in finding that it could not allow
Proffitt to continue as Combs’ attorney under the
circumstances. Combs wanted an unconflicted
attorney and also wanted Proffitt to be that
attorney. Because of Proffitt’s conduct, that was
impossible. When Combs refused to waive the
conflict, the court had no choice but to appoint
new counsel for Combs and proceed to a second
trial. In order that the judgment remain intact
on appeal, the district court enforced Combs’
right to effective assistance of counsel. See

(district courts may be
whip-sawed by assertions of error no matter which
way they rule in the situation of multiple
representations). The district court here acted
scrupulously in its protections of the
defendant’s rights. It did not abuse its
discretion in doing so.

C.

      We next consider whether the district court
erred when it refused to suppress Combs’
confession on the grounds that the police
officers did not inform him of his Miranda rights
before obtaining his statement. In the district
court, Combs claimed that his statement was
involuntary because the police officers continued
to question him after he requested an attorney.
The district court held a hearing on that claim
and concluded that Combs never unequivocally
asked for an attorney and that the officers’
continued questioning of him under the
circumstances was reasonable. In the course of
its order on that matter, the court stated that
"at some point during his custodial
interrogation, Combs was given Miranda warnings."
August 5, 1998 Memorandum and Order, at 7. On the
basis of that statement, Combs now argues that
there was no clear finding by the district court
as to when Combs was read his rights, and thus no
clear finding that he waived those rights before
he gave an incriminating statement.

      Combs did not raise this issue of the timing of
the Miranda warnings in his motion to suppress
before the district court. We therefore review
his claim for plain error. Fed. R. Crim. Pro.
52(b). Implicit in the district court’s finding
that Combs waived his rights is a finding that
the officers advised Combs of his rights before
interrogating him. The district court’s Order
would be nonsensical if the district court
believed Combs’ testimony that the officers did
not advise him of his rights until after
questioning had begun and after Combs had claimed
ownership of the package of methamphetamine.
After all, as the district court correctly noted
in its Order, statements gathered without Miranda
warnings are irrebuttably presumed to be
involuntary and thus inadmissable. See August 5,
1998 Memorandum and Order, at 4; Oregon v.
Elstad, 

, 306-07 (1985). Yet the
district court found that Combs’ statements were
voluntary because he received the Miranda
warnings and continued to talk to the police
after indicating an understanding of his rights.
We review de novo the district court’s finding
that Combs’ Miranda waiver was voluntary, but our
review of the district court’s findings of
historical fact is deferential. United States v.
Westbrook, 

, 1001 (7th Cir. 1997),
cert. denied, 

(1997). We will not
reverse the district court’s findings of
historical fact absent clear error. 

error that Combs claims is that the court did not
make a specific finding that the warnings were
given before any interrogation occurred. Because
such a finding was implicit in the district
court’s order, and readily apparent from a
careful reading of that order, we find no error.

D.

      We turn finally to Combs’ claim that the
evidence was insufficient to prove that he had
the intent to distribute the methamphetamine. He
does not challenge the sufficiency of proof on
the possession prong of the statute. Combs faces
a formidable hurdle to successfully challenge the
sufficiency of the evidence. See United States v.
Van Dreel, 

, 906 (7th Cir. 1998).
Viewing the evidence in the light most favorable
to the government, we reverse only if the record
contains no evidence from which the jury could
find guilt beyond a reasonable doubt. 

ownership of a package containing
616 grams of methamphetamine. A jury may infer
intent to distribute when the amount found in the
defendant’s possession greatly exceeds the amount
normally possessed for personal use. United
States v. Velasquez, 

, 653 (7th Cir.
1995). Combs could not seriously argue that he
intended to personally consume more than a pound
of methamphetamine, or that a jury could not
infer intent to distribute from that ponderous
amount. The evidence was sufficient for the jury
to infer that Combs intended to distribute the
methamphetamine.


III.

      For the reasons stated above, we therefore
affirm the judgment of the district court.

AFFIRMED.



/1 The court asked for clarification and Combs
stated, "I don’t want to waive none of my
rights." Tr. at 193. This declaration is relevant
to the government’s claim that Combs failed to
object to the mistrial.

/2 Obviously, we would reach a different result if
the misconduct had been committed by the
prosecutor rather than Combs’ own counsel. When
calculated prosecutorial misconduct necessitates
the mistrial, the double jeopardy clause may bar
retrial of the defendant. 

n.1.