United States v. Traeger, Andrew

In the

United States Court of Appeals

For the Seventh Circuit

No. 01-2154

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANDREW TRAEGER,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 97 CR 697--Milton I. Shadur, Judge.

Argued April 1, 2002--Decided May 8, 2002

Before EASTERBROOK, DIANE P. WOOD, and

EVANS, Circuit Judges.

EVANS, Circuit Judge. It’s not a good

idea to rob banks. It’s particularly not

a good idea to rob banks when you have

distinctive physical characteristics--

like being bigger than the average

offensive tackle in the National Football

League. Not to mention wearing your hair

in a ponytail.

Andrew Traeger, whose nickname,

appropriately enough, is "Mountain,"

carries 350 pounds on his 6’5" frame. On

an October afternoon in 1997, Traeger

robbed the LaSalle Bank on Chicago’s

Ashland Avenue. A LaSalle teller gave

police a description of the robber. One

week later, Traeger tried to rob the

Great Bank on Chicago’s Western Avenue. A

report of that attempt, with a

description similar to the description of

the LaSalle robber, went to the police.

Less than 20 minutes later, alert police

officers saw Traeger, who fit the

description they had, walk past a bank

(the North Community Bank) in a strip

mall on Western Avenue. He was arrested a

few moments later. Subsequently, a two-

count indictment was returned charging

Traeger with the robbery and the attempt.

After the jury heard a compelling case

against him--including eyewitness

identifications from bank tellers--

Traeger was convicted on both counts.

Today we resolve his appeal from those

convictions.

A startling aspect of this case is that

Traeger was not sentenced until more than

2 years after he was convicted. In the

interim, he discharged his trial lawyer

and went through two more lawyers in a

failed effort to establish that his trial

lawyer rendered ineffective assistance.

When Traeger was finally sentenced, he

represented himself, and that is one of

the grounds he urges on this appeal--a

claim that he was denied his Sixth

Amendment right to counsel at sentencing.

Before getting to the issues on this

appeal, we want to note that the

condition of the transcript in this case

is as bad as any to reach this court in

recent memory. Its deplorable state

prompted the government to insert this

heads-up in a footnote at the beginning

of its brief:

The record on appeal consists of one

volume of pleadings and orders, cited as

"R." followed by a document number, and,

where appropriate, a page or paragraph

number within the document; and, as

supplemented, 17 volumes of transcripts.

The transcript of the trial is five

volumes, but each is separately

paginated, and the proceedings are not

transcribed in order--for instance, one

volume transcribes the parties’ opening

statements on March 23, 1999, followed by

the testimony of a single government

witness, followed by the closing

arguments given on March 25, 1999. The

trial transcripts are also erroneously

dated March 1998. The trial was in March

1999. However, each volume has a number

handwritten on the lower right corner of

the cover page. Citations to the trial

transcript are to that number, e.g.,

"132-1," followed by "Tr." and a page

number within that volume. Part of the

trial was not transcribed. The

transcripts of the first day of testimony

conclude with the district court

announcing a brief afternoon recess, with

testimony to resume at 3:25 p.m., and the

government informing the district court

that it had two more witnesses to call.

133-1Tr. 98-99. The government informed

the court reporter regarding this

problem, and twice the court reporter has

prepared transcripts of what he believed

was the testimony following the afternoon

break on March 23, 1999. Both are in

error. The first, number 136-1, is a

duplicate of Agent Joseph Stiller’s

testimony at a pre-trial suppression

hearing, 132-2Tr. The second, numbered

137-1, is a duplicate of Agent Stiller’s

testimony at trial on March 25, 1999, as

a defense witness. 133-3Tr.3-18. The

government has asked the court reporter

to continue looking for his notes for

March 23, 1999, following the afternoon

break. The other transcripts are of the

pre-trial suppression hearing and the

post-trial proceedings. They are also

cited by the number on the lower right

corner of the cover page, followed by

"Tr." and a page number. "DA" refers to

the appendix to defendant’s brief. The

government’s appendix is cited as "GA."

The first citation to materials contained

in an appendix is to both the record and

the appendix, and thereafter to the

appendix only.

And that’s not all. Headings in the

transcripts--indicating what witness’s

testimony is reported on a page--

arehopelessly screwed up. For instance,

we found the testimony of one of the

arresting officers (LoPresti) recorded

under the heading "Amin--recross" and the

testimony of Pauline Anderson recorded

under the heading "Goodman--redirect." If

there were awards for sloppiness, the

court reporter (who, out of charity, we

will not name) here would win first

prize.

Now on to Traeger’s appeal. One of the

government’s witnesses (Anderson) was a

prostitute who spent a week with Traeger

in a hotel (the Spa Motel)/1 after the

LaSalle robbery and before the attempt to

stick up the Great Bank. Traeger paid for

all lodging, food, beverages, and

services performed by Anderson with a

roll of bills he kept under a mattress or

in a sock. Anderson told the jury that at

the end of the week, while she was with

Traeger in a "lounge" having a beer, he

asked her to go into the Great Bank and

see "how far the tellers were from the

front door." She said he told her he

wanted this information because he

"needed a good bank to invest in." She

went. She returned shortly and gave

Traeger the requested information.

Anderson and Traeger then left the

lounge, hailed a cab, and took it less

than a block to the front door of the

Great Bank. Traeger got out, told the cab

driver to wait, and entered the bank.

Traeger returned in a few minutes, saying

it "wasn’t a good bank to invest in." The

cab then proceeded to the bank in the

strip mall on Western Avenue. Traeger got

out, returned, and before the cab could

leave, it was surrounded by police

officers.

So, what happened inside the Great Bank

while Anderson and the cab driver waited

outside? Well, according to Jade Lee, the

bank’s branch manager, Traeger (whom she

identified soon after he was arrested and

returned to the bank for a viewing by

tellers) approached her at a teller

window, announced a robbery, and said if

she gave him all the money she would not

be hurt. In a state of disbelief, Lee

replied, "I’m sorry?" Traeger then

repeated his demand for money, adding

that he had a gun and that Lee should not

press the alarm. Now panicking, Lee said,

"I really can’t," and backed away from

the counter. When Traeger started to

reach under his sweatshirt, telling Lee

to "come here," Lee said to the teller at

the adjacent window, "Sun Gang, get

down," and then Lee dropped to the floor.

At that point, Traeger left the bank

empty-handed. The offered defense to the

attempted robbery charge (in Traeger’s

lawyer’s closing argument--Traeger

himself wisely elected not to testify)

was that there was no intent to rob; it

was just a misunderstanding on Lee’s part

because her English was a little weak.

The first robbery, of the LaSalle Bank,

was more conventional. According to a

teller, Lorena Barajas, Traeger (whom she

identified in an FBI lineup 2 weeks after

his arrest) announced a robbery, told her

he had a gun, and said she should stay

calm, not press the alarm, and give him

the $20s, $50s, and $100s from her

drawer. She complied and Traeger left the

bank $5,840 richer. The defense to this

robbery was misidentification.

There was other evidence pointing to

Traeger’s guilt (like an incriminating

utterance to a police officer regarding

the LaSalle Bank robbery), but we think

we can safely stop now and consider the

arguments Traeger advances in the hope of

setting aside his convictions.

Traeger’s first claim concerns an

alleged Brady violation (Brady v.

Maryland, 373 U.S. 83 (1963)) involving

Ms. Anderson’s testimony, which he argues

was "outcome-determinative" on the Great

Bank charge. This characterization of

Anderson’s testimony is a bit of a

stretch. Sure, "lack of intent to rob"

was the "defense" to the charge, but

there was no defense evidence offered to

support it, only inferences as urged by

Traeger’s lawyer during closing argument.

Nevertheless, we agree that her testimony

was helpful to the government, so we’ll

look deeper into Traeger’s claim.

As we said, there was a bizarre 2-year

hiatus between Traeger’s conviction and

sentencing. A lot can happen over 2

years, and a lot did happen here. For one

thing, as we have already noted, Traeger

went through a number of lawyers. For

another, he testified on behalf of a chap

named Terrence McClurge, who was being

prosecuted by Stuart Fullerton, one of

the AUSAs who prosecuted Traeger’s case.

The McClurge trial took place 8 months

after Traeger was convicted. During his

cross-examination in the McClurge case,

Fullerton asked Traeger if he knew that

Anderson was granted immunity in exchange

for her testimony against him during his

trial.

When Traeger testified in McClurge’s

trial, he was being represented in post-

trial litigation by attorney Gerald

Collins, who was appointed to replace

Robert Clarke, the trial lawyer who was

discharged at Traeger’s request. Collins

had filed a motion for a new trial

alleging that Clarke rendered ineffective

assistance. Four months after the

McClurge trial, Collins filed a motion

for a new trial based on newly discovered

evidence, alleging that the government

withheld the fact that Anderson testified

under a grant of immunity. In response,

the government submitted Fullerton’s

affidavit and the transcript of Traeger’s

cross-examination at McClurge’s trial. In

the affidavit, Fullerton explained that

at the time of Traeger’s trial, he and

co-prosecutor Susan Haling thought

Anderson might be reluctant to testify

for fear of incriminating herself, and

that they were prepared to seek immunity

for her if that turned out to be the

case. As it was, however, the issue never

came up, and Anderson testified without

immunity. Fullerton said his statements

at the McClurge trial were based on a

faulty recollection of what had happened

8 months earlier.

The district court scheduled an

evidentiary hearing for March 31, 2000,

on the Anderson immunity issue (and

several other issues raised in a motion

filed by attorney Collins), but when the

day came, Traeger submitted a pro se

motion to have Collins dismissed from the

case, complaining that he misspelled some

names in his motion papers and referred

to Pauline Anderson as "Pauline

Goodman."/2 The pro se motion asked the

district court to treat Collins’ motion

as "null and void."

Collins was granted leave to withdraw,

and Traeger subsequently retained another

attorney, Ralph Meczyk, apparently using

money he received from his father to pay

a retainer. When that money ran out, just

a few months later, the district court

appointed Meczyk to act as Traeger’s

counsel. On February 16, 2001, Meczyk

filed a motion for a new trial, alleging

that Clarke rendered ineffective

assistance at trial, but the motion made

no reference to the earlier claim that

the government withheld evidence that

Anderson had been granted immunity.

Meczyk’s motion was denied without a

hearing on March 5, 2001.

The case was back in court on March 23,

2001, and Traeger announced that he

wanted Meczyk dismissed because he was

dissatisfied with his failure to raise

all the issues Traeger thought were

important. Meczyk was asked to comment

and said that, after reviewing all the

material in the case and consulting with

Traeger, he raised the issues he believed

had potential merit and declined to raise

the issues "that I did not feel I could

do in good conscience." Traeger himself

specifically requested that the district

court reset the evidentiary hearing that

had been set the year before (on the day

he fired Collins), at least for purposes

of taking evidence on the immunity issue,

but the district court refused to do so.

The court ruled that it had been prepared

to go forward with an evidentiary

hearing, depending on the issues raised

in Meczyk’s motion, but after reviewing

the motion it became clear that no

hearing was needed, and the motion was

decided on the papers. At this point, it

had been 2 years since the conclusion of

the trial, and the district court found

that Traeger had more than ample time to

raise, through counsel, any issues

pertaining to the fairness of his trial.

The district court was not willing to

delay sentencing any longer and set the

sentencing hearing for April 30, 2001,

but the court also invited Traeger to

file a motion for leave to submit

additional issues for review if he so

desired:

TRAEGER: If I could just amend--I am

just asking to amend Mr. Meczyk’s motion

with a couple of issues. I could do it

within a week. I could have it on your

desk within one week. And if it’s

meritless, then just deny it and let’s go

with the sentencing, your Honor. But I

have got to say I am begging you to

listen to this, Judge, you know.

THE COURT: Well, let me do this. I am

going to set the machinery in place for

purposes of sentencing. If you want to

tender something, it has to be in the

form of a motion for leave to do

something. If you want to do that, you

can do that. You know, one of I suppose

the inevitable consequences of any

lawyer, and that means any individual

filing a motion before a court for leave

to do something is that the court

inevitably reads it, you know. It has its

own effect. If you want to do that, then

you file something, but it has to be in

the form of asking leave to file a

renewed motion [for] a new trial. And

whatever you file, I will look at it.

[T]hat I will promise you, because partly

because I am compulsive, but also because

of the idea whenever anything is tendered

by definition in order to consider it, it

has to be read.

Traeger did not seek leave to submit any

additional issues in support of his

motion for a new trial.

Upon this record we have little trouble

concluding that Traeger waived his claim

that the government suppressed an

"immunity agreement" with Anderson. And

in waiving the issue, Traeger may have

unwittingly outsmarted himself. His

waiver is found in his expressly stated

disavowal of the motions filed by his

lawyer (Collins, who actually raised the

claim) and by his failure to renew the

claim when invited to do so in the

portion of the transcript we have just

quoted. So we have Traeger insisting that

Collins’ motion be treated as "null and

void" and nothing happening after that to

properly resurrect the issue. But even

were we to find that there was no waiver,

we think the issue--whether or not

Anderson received immunity--is one that

the court could determine without

impaneling a full-blown evidentiary

hearing. We think the district judge

could accept as reliable a representation

by an attorney such as the one Fullerton

made in his affidavit. What are the

chances that Fullerton, a government

attorney, would falsely swear under oath

that Anderson was not given immunity for

her testimony? Because the matter of the

immunity grant would be in a public

record somewhere, Fullerton would be

risking a lot--disbarment and criminal

prosecution for false swearing to mention

two--on a petty issue. We think it was

not unreasonable for the district judge

to assume that he wouldn’t do so by

filing a false affidavit. But we’ll add a

final nail to the coffin: Even if

Anderson had been given immunity, the

failure to disclose that fact to

Traeger’s trial lawyer would be harmless

error beyond a reasonable doubt. In fact,

we can’t imagine that a good lawyer would

want to spend too much time cross-

examining Anderson on whether she was

being spared criminal prosecution for her

role in casing the Great Bank before

Traeger went in to rob it. Better she

does not have immunity, for it might show

she didn’t think criminal activity was

going to take place.

Traeger’s next argument is that he

received ineffective assistance of

counsel at trial because his attorney,

Clarke, was "unreasonably passive,"

failed to advise the court of a chance

encounter between Traeger and a juror,

and failed to move for separate trials

for the two robberies. When considering a

claim of ineffective assistance of

counsel, we review the district court’s

conclusions of law de novo, its factual

findings for clear error, and its denial

of an evidentiary hearing for an abuse of

discretion. See Bruce v. United States,

256 F.3d 592, 597 (7th Cir. 2001).

To establish a claim of ineffective

assistance, the defendant must satisfy a

two-prong test. First, he must show that

counsel’s performance was deficient,

which means that the attorney’s errors

were so serious that the defendant was

deprived of "counsel" within the meaning

of the Sixth Amendment. Second, the

defendant must show that the deficient

performance prejudiced him. See

Strickland v. Washington, 466 U.S. 668,

687 (1984). To establish prejudice, the

defendant must show that there is a

reasonable probability that, but for

counsel’s shortcomings, the result of the

proceeding would have been different. See

id. at 694. This is a difficult test to

satisfy because counsel is strongly

presumed to have rendered adequate

assistance and to have made significant

decisions in the exercise of his or her

reasonable professional judgment. See id.

at 690.

Traeger’s first contention is that

Clarke was cowed by fear of violating a

proffer agreement into "making no effort

whatsoever" to elicit favorable evidence

that was not inconsistent with the

proffer, in which Traeger admitted

torobbing the LaSalle Bank. The agreement

provided that if Traeger testified

contrary to the substance of the proffer

or otherwise presented a position

inconsistent with it, the government

could use the proffer at trial for

impeachment (or in rebuttal). Traeger

claims that he asked Clarke to call

several potential witnesses, whom Clarke

failed to call. These potential witnesses

included two LaSalle Bank security guards

whose descriptions of the robber "varied

slightly from each other and from the

description given by Barajas." Traeger

also wanted Clarke to call a desk clerk

from the YMCA who believed that the man

depicted in the bank’s security photos

was someone named Ralph Freeman. Another

witness Traeger wanted Clarke to call was

Great Bank teller Sun Gang (recall what

we said earlier about her in quoting

teller Lee), who he believed would

testify that there was a large sum of

money sitting on her counter when Traeger

was in the bank and that he did not take

it. This evidence, he says, would show

that he did not intend to rob the bank.

Traeger argues that, under United States

v. Krilich, 159 F.3d 1020 (7th Cir.

1998), the testimony of these witnesses

would not have been inconsistent with the

proffer and therefore would not have

triggered use of the proffer at trial. In

Krilich, we held that evidence is

inconsistent with a proffer statement

only if it implies that the proffer is

false. See id. at 1025-26.

Traeger waived or at least forfeited his

arguments concerning these witnesses. In

his May 1999 pro se motion, he raised an

ineffective assistance of counsel claim

based on Clarke’s failure to call these

potential witnesses. In November 1999

Traeger obtained his second attorney,

Collins, who filed a second motion

asserting ineffective assistance on the

same grounds. Once Traeger was

represented by counsel, he was not

entitled to have the district court

consider his previous pro se motion. See

United States v. Johnson, 223 F.3d 665,

668 (7th Cir. 2000) (holding that

assertion of the right to counsel

constitutes de facto waiver of the right

to proceed pro se). Thus, Collins’ motion

became the only one before the district

court. Before the court could rule on it,

however, Traeger, as we said, fired

Collins and asked the district court to

treat Collins’ motion as "null and void."

The motion that Traeger’s third attorney,

Meczyk, filed did not specifically refer

to the potential witnesses we just

mentioned, but alleged that Clarke

rendered ineffective assistance by, among

other things, "failing to address Mr.

Traeger’s proffer." Meczyk’s motion also

asserted that, in order to render

effective assistance, Clarke would have

"needed to deal with the proffer, either

in a motion in limine or at trial." The

Meczyk motion does not detail how exactly

Clarke should have "addressed" or "dealt

with" the proffer, but it does go on to

note that Traeger had "alibi witnesses."

It’s certainly less than clear to us that

this statement refers to the bank

security guards, teller Sun Gang, or the

YMCA desk clerk. Assuming that it does,

this statement did not sufficiently

notify the district court of the

substance of Traeger’s arguments

concerning these witnesses. Therefore,

Traeger at least forfeited these

arguments. Forfeiture is the failure to

make a timely assertion of a right. See

id. at 415. We review forfeited errors

for plain error that affects substantial

rights. See United States v. Olano, 507

U.S. 725, 732 (1993).

But given Traeger’s subsequent actions

with regard to Meczyk’s motion, it

appears that he waived these arguments

entirely rather than merely forfeiting

them. Waiver is the intentional

relinquishment or abandonment of a known

right. See United States v. Cooper, 243

F.3d 411, 415-16 (7th Cir. 2001). Here,

the district court gave Traeger an

opportunity to amend or supplement

Meczyk’s motion. Traeger chose not to

file anything renewing his arguments

concerning the potential witnesses.

Therefore, he intentionally relinquished

these arguments. Because he waived them,

we may not review them because in such a

situation there is no error to correct.

See Cooper, 243 F.3d at 415.

Assuming that Traeger merely forfeited

these arguments, however, he cannot

establish plain error. The record is

silent as to why Clarke decided against

calling the bank guards as witnesses. We

will not presume deficient performance

based on a silent record because we

presume counsel made reasonable strategic

choices unless the defendant presents

evidence rebutting that presumption. See

Strickland, 466 U.S. at 689-90. Clarke

may have decided not to call the bank

guards because the impeachment value of

their testimony was low. This decision

would have been supported by the fact

that the bank guards’ descriptions of the

robber were generally consistent with

each other and with Barajas’ description-

-each guard described the robber as a

fair-haired white male in his thirties

wearing a baseball cap and a long

ponytail; both described him as 6’3" or

6’4", and both had him in the

neighborhood of 300 pounds. It’s also

possible that Clarke worried that calling

the guards would backfire if they

identified Traeger as the robber when

they saw him in court.

Nor can we say that Clarke’s decision

not to call the YMCA desk clerk was

ineffective assistance, especially given

that testimony from the clerk that

"Freeman" was the robber, implying that

Traeger was not, would have triggered

introduction of the proffer in rebuttal

because that testimony would have been

inconsistent with Traeger’s admission

that he committed the robbery. Likewise,

we cannot say that Clarke’s decision not

to call Sun Gang amounted to ineffective

assistance. Traeger puts forth no

evidence that she would have testified

that Traeger actually saw the alleged

pile of money on her counter. A

defendant’s speculation about what

evidence might have been found is

insufficient to demonstrate prejudice--he

must show what the evidence would have

been and how it would have produced a

different result. See United States v.

Shetterly, 971 F.2d 67, 75 (7th Cir.

1992).

Traeger also claims ineffective

assistance based on Clarke’s failure to

advise the trial judge of a chance

encounter between Traeger and a juror. On

the last day of trial, one of the deputy

marshals escorting Traeger from lockup to

the courtroom walked him past the jury

room, which had its door open. At the

time, the juror was seated in the jury

room and could have seen Traeger, who was

in shackles wearing an orange jail

jumpsuit. Traeger claims that he told

Clarke of this incident, but that Clarke

advised him not to mention it to the

judge because the issue could be a valid

ground for appeal in the event of a

guilty verdict. Traeger complains that

being seen in prison garb and shackles

deprived him of the presumption of

innocence. See Estelle v. Williams, 425

U.S. 501, 504 (1976).

Traeger bears the burden of showing

affirmatively that he was prejudiced by

inadvertent exposure to the juror. See

United States v. Jones, 696 F.2d 479, 492

(7th Cir. 1982). The facts of Jones are

instructive. There, during the second day

of trial, the defendant was being

escorted to the courtroom via elevator

when he allegedly encountered a juror who

was standing outside the elevator. At the

time, the defendant was shackled to a

defendant in an unrelated case who had

received tremendous local publicity. The

encounter lasted about 4 seconds. See id.

at 492. We held that it was not so

prejudicial as to require a mistrial. See

id. at 492-93.

Here, the district court expressed doubt

that the juror even saw Traeger. Even

assuming that the juror saw him, Traeger

put forth no affirmative evidence that

the encounter had an unfairly prejudicial

effect. Two of our sister circuits have

held that the mere fact that a juror had

a brief view of a defendant in custody is

not sufficient to establish prejudice

warranting a new trial. See United States

v. Van Chase, 137 F.3d 579, 583 (8th Cir.

1998); United States v. Halliburton, 870

F.2d 557, 561 (9th Cir. 1989). This is a

sound proposition, given that a

reasonable juror would understand that

not all criminal defendants are able to

post bail, and therefore that their

detention pending verdict does not imply

guilt.

Traeger’s final asserted ground for

ineffective assistance is Clarke’s

failure to move for separate trials on

the two charges. Traeger claims that

there was a potential for unfair

prejudice because his defenses to the two

counts were different. But two or more

charges are properly joined for trial if

they arise from offenses that are the

same or of similar character. See Fed. R.

Crim. P. 8(a). Clearly, robbery and

attempted robbery are similar in

character. Additionally, there would have

been no point in severing the charges

because evidence of the Great Bank

attempted robbery would have been

admissible in a trial on the LaSalle Bank

robbery charge under Federal Rule of

Evidence 404(b) to prove identity.

Likewise, evidence of the LaSalle Bank

robbery would have been admissible under

Rule 404(b) to prove intent in a trial of

the Great Bank charge. See United States

v. Dijan, 37 F.3d 398, 402 (8th Cir.

1994) (holding that joinder of charges

was not prejudicial because evidence for

each set of counts was mutually

admissible to show the defendant’s

motive, intent, and pattern of criminal

behavior).

Traeger also argues that the district

court should have suppressed teller

Barajas’ identification of him as

theperson who robbed the LaSalle Bank. He

claims that the lineup at which she

identified him was unduly suggestive

because Traeger was noticeably "bigger"

and "rounder" than the other men in the

lineup and because Traeger was the only

one wearing an "ankle restraint."

In recent cases we have stated

inconsistently the standard of review of

a district court’s refusal to suppress an

identification, sometimes stating that

our review is de novo, sometimes that it

is for clear error. We first noted this

inconsistency in United States v. Curry,

187 F.3d 762, 768 (7th Cir. 1999) (citing

United States v. Newman, 144 F.3d 531,

535 (7th Cir. 1998) (de novo); United

States v. Funches, 84 F.3d 249, 253 (7th

Cir. 1996) (clear error); United States

v. Moore, 115 F.3d 1348, 1360 (7th Cir.

1997) (clear error)). We declined to

resolve the inconsistency, holding that

the defendant in Curry lost under either

standard of review. See Curry, 187 F.3d

at 768. Since Curry, we have invoked both

the clear error standard and the de novo

standard without mentioning the conflict.

See United States v. Galati, 230 F.3d

254, 259 (7th Cir. 2000) (clear error);

United States v. Downs, 230 F.3d 272, 275

(7th Cir. 2000) (de novo). As in Curry,

we need not resolve the conflict here, as

Traeger’s argument is a loser under

either standard.

The lineup occurred 3 weeks after the

LaSalle Bank robbery. All six

participants wore orange jumpsuits.

Initially, they were seated to minimize

any height differential, but then each

took turns standing up. Barajas

identified Traeger as the robber without

hesitation, later testifying that she

recognized him immediately but that she

looked over the men twice to be sure

before announcing that he was the robber.

Traeger complains that the lineup was

unduly suggestive because he was the

largest participant. We engage in a two-

part inquiry in determining the

admissibility of challenged

identification testimony. First, we ask

whether the defendant established that

the identification procedure was

unnecessarily suggestive. If it was, we

ask whether, under the totality of the

circumstances, the identification was

reliable despite the suggestive

procedures. See Kubat v. Thieret, 867

F.2d 351, 357 (7th Cir. 1989). In

determining the reliability of an

identification, we consider five factors:

(1) the witness’ opportunity to view the

criminal at the time of the crime, (2)

the witness’ degree of attention, (3) the

accuracy of the witness’ prior

description of the criminal, (4) the

level of certainty that the witness

demonstrated at the time of the

confrontation, and (5) the time elapsed

between the crime and the confrontation.

See Cossel v. Miller, 229 F.3d 649, 655

(7th Cir. 2000) (citing Neil v. Biggers,

409 U.S. 188, 199-200 (1972)).

Here, our review of photographs of the

lineup indicates that, although Traeger

was larger than the other participants,

the size differential was not so great as

to make the lineup unduly suggestive.

Additionally, we note that it would have

been difficult to find five other men

approximating Traeger in size and

physical appearance--outside of the NFL,

six and a half footers who tip the scales

at 350 pounds are fairly rare.

Authorities conducting lineups are

required only to make reasonable efforts

under the circumstances to conduct a fair

and balanced presentation. They are not

required to search for identical twins in

age, height, weight, or facial features.

See United States v. Moore, 115 F.3d

1348, 1361 (7th Cir. 1997). A trip to

Hallas Hall to gather a lineup was not

required here. The fact that the other

lineup participants could not pass for

Traeger’s twins did not make the lineup

unduly suggestive.

Even assuming that the lineup was unduly

suggestive, the Cossel/Biggers factors

support the accuracy of Barajas’

identification. Barajas had ample

opportunity to view Traeger at the time

of the crime, even though Traeger argues

that the encounter lasted only 2 or 3

minutes, and that Barajas had to spend at

least some of that time looking away from

the robber to remove money from her

drawer. Barajas spent that time in close

proximity to Traeger, and her attention

was likely sharpened by the fact that she

was being robbed. The description she

gave of the robber on the day of the

robbery accurately describes Traeger. She

stated he was a white male in his early

to midthirties who was 6’3" tall, weighed

300 to 350 pounds, was unshaven, and wore

a blond ponytail. Finally, the lineup

took place only 3 weeks after the

robbery, at a time when the robber’s

appearance was still fresh in Barajas’

memory.

Traeger argues that it was significant

that Barajas did not recall seeing

tattoos on the robber’s hands because

Traeger has tattooed hands. Traeger did

not present this argument to the district

court at the suppression hearing, so he

waived it. Even assuming he properly

presented this argument, in the face of

the other factors indicating that

Barajas’ identification was reliable, her

failure to notice whether the robber had

tattooed hands is insignificant.

Traeger also complains that the lineup

was unduly suggestive because he was

wearing a visible ankle restraint at the

time. The restraint was a plastic tie

wrap that authorities used because

Traeger was too large for leg cuffs. At

the suppression hearing, Barajas was

shown a photograph of the lineup and

directed to describe what she saw on

Traeger’s right ankle. She stated that

the ankle restraint looked like a strap,

that she did not remember seeing it

during the lineup, and that, after

looking at it in the photograph, she did

not know what purpose it served.

Based on our review of photos of the

lineup, we note that the restraint was a

thin plastic tie that someone not

familiar with the inner workings of the

criminal justice system would not

recognize as a restraint. Indeed, it

seems unlikely that Barajas even noticed

the strap, given that her attention was

focused on Traeger’s face, which she

demonstrated by telling the FBI agents

after she identified Traeger that the

robber’s face and eyes were the features

that she remembered most. Thus, the

presence of the ankle strap was not

unduly suggestive as to corrupt the

reliability of Barajas’ identification.

Finally, Traeger argues that he was

deprived of his right to counsel at his

sentencing hearing. Traeger’s brief fails

to point out that the reason that he was

unrepresented at sentencing was that he

fired Meczyk, the last in his long line

of attorneys, a month before sentencing.

He also fails to point out that before

the district court allowed Meczyk to

withdraw, Traeger stated that he wanted

to proceed pro se and acknowledged the

court’s earlier admonition that, if he

fired Meczyk, the court would not appoint

yet another lawyer. Traeger claims that

in doing so, however, he did not waive

the right to counsel.

A defendant can waive his right to

counsel through conduct as well as words.

See United States v. Oreye, 263 F.3d 669,

670 (7th Cir. 2001). Because

representation by counsel and self-

representation are mutually exclusive

entitlements, the assertion of one right

constitutes a de facto waiver of the

other. See Johnson, 223 F.3d at 668.

Here, Traeger acknowledged the district

court’s warning that it would not appoint

another attorney if he fired Meczyk and

still chose to go forward to sentencing

pro se. This choice was a sufficient

waiver of the right to counsel.

Additionally, we held in United States

v. Irorere, 228 F.3d 816, 826 (7th Cir.

2000), that a defendant may waive the

right to counsel through his own

"contumacious conduct." There, we upheld

the district court’s refusal to appoint

counsel for the defendant’s sentencing

hearing because the defendant had already

frustrated four of the court’s attempts

to provide counsel for him. See id. at

827. The facts of Irorere are strikingly

similar to those of Traeger’s case.

Traeger went through three lawyers,

firing them for questionable reasons. In

the process, he managed to delay his

sentencing for almost 2 years. We review

the district court’s refusal to appoint

counsel for abuse of discretion and will

not reverse unless the failure to do so

would result in fundamental unfairness

impinging on due process rights. See id.

Under these circumstances, the district

judge did not even come close to abusing

his discretion in refusing to appoint a

fourth lawyer to represent Traeger.

AFFIRMED.

FOOTNOTES

/1 The Spa Motel is not to be confused with the

Waldorf-Astoria: its rate was only $25 a night.

/2 There was a "Goodman" who testified during the

trial, but her first name was Rochelle.