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, 

,
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, 

(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, 

(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 jury-
selection 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, 

(9th
Cir. 1998). But the Supreme Court took a
different tack, observing that Martinez-
Salazar 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 

. 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, 

, 219 (1965), that
"[t]he denial or impairment of the right
[to peremptory challenge] is reversible
error without a showing of prejudice."

. Relying on
Ross v. Oklahoma, 

(1988), the
prosecutor argued that harmless-error
analysis applies to problems concerning
peremptory challenges. We 

: "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, 

(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 

(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 oft-
quoted 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 

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 

. 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, 

(1999)
(omission from jury instructions of an
element of the offense); Jones v. United
States, 

(1999) (inclusion of
improper aggravating factor in a capital
case); United States v. Lane, 

(1986) (misjoinder). See also, e.g.,
Peguero v. United States, 

(1999); Bank of Nova Scotia v. United
States, 

(1988); United
States v. Hasting, 

(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, 

, 279 (1993). For the same reason, a
biased tribunal always deprives the
accused of a substantial right. Bracy v.
Gramley, 

(1997). See also
Gomez v. United States, 

, 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,

, 658-59 (1984); Castellanos
v. United States, 

(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,

, 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, 

(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 

. 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." 

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, 

(1946): that it "had substantial and
injurious effect or influence in
determining the jury’s 

. See also United States v. Olano,

, 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, 

(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-for-
protection 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, 

(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, 

(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

. We can’t see any
difference between gun-for-drugs (held
sufficient in Smith) and gun-for-
protection (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, 

,
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, 

(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, 

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

, 658-59 (1984); United
States v. Russell, 

(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, 

(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, multi-
defendant trials. See United States v.
Jackson, 

, 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, 

,
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, 

(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, 

,
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, 

(7th Cir. 1988) (holding that defendants
may waive the entitlement to conflict-
free 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 co-
counsel, 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, 

, 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 five-
year-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, 

, 466-68 (1991); Neal v. United
States, 

(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, 

(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,

(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, 

(1999)--has been
resolved by an opinion issued after the
oral argument of this case. See 

. See also United
States v. Edwards, 

(7th
Cir. 1997), affirmed, 

(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.