# United States v. Robert M. Morrison, Michael Anderson, James D. Walton, Sean Foley, and Jose Andrini-Varga

> Court of Appeals for the Seventh Circuit · December 2, 1991 · 946 F.2d 484

URL: https://www.frixlaw.com/law-library/cases/9482154

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Robert M. MORRISON, Michael Anderson, James D. Walton, Sean Foley, and Jose Andrini-Varga, Defendants-Appellants
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** December 2, 1991
- **Citations:** 946 F.2d 484
- **Precedential status:** Published
- **Opinion:** Concurring in part by Cudahy
- **Judges:** Cudahy, Coffey, Flaum
- **Cited by:** 110 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9482154

## How later opinions describe it (automated extraction)

- holding that the district court abused its discretion in failing to make an inquiry into the reasons for the motion for substitute counsel but going on to determine whether the error was harmless
- finding that the court must make some inquiry into the reasons for the defendant’s dissatisfaction with his lawyer
- finding failure to investigate crucial witness not per se violation of Sixth Amendment where lawyer still presented argument at trial

## Opinion text

CUDAHY, Circuit Judge,
concurring in part and dissenting in part.
The majority opinion deals skillfully with the many problems presented by this difficult case and I join it in all respects save one. With respect to the appeal of James Walton, the majority states, “A remand for an evidentiary hearing would therefore seem appropriate.” At 500. This seems to me to be the correct resolution of Walton’s appeal, and our consideration should stop there.
Walton was held at the Metropolitan Correctional Center in Chicago before trial and his appointed counsel was from Milwaukee. Counsel visited Walton for the first time only thirteen days before trial, and there was an immediate falling out. Walton’s vehement rejection of counsel was apparently precipitated by counsel’s refusal to interview alibi witnesses. A prompt motion for substitution of counsel was denied without a hearing.
The majority concludes that the Sixth Amendment was not violated because Walton’s proffered alibi 1 would have met some of the evidence against him but not all. I *505 think that at a hearing this thesis and its significance might have been demonstrated, but without a hearing they are speculative. Since the jury refused to convict Walton on any of the substantive importation charges, it was apparently skeptical about the sincerity of the witnesses. We do not know what testimony the jury found credible — that Walton smuggled drugs on every occasion the government said he did or only on some of them. A hearing is necessary to determine whether Walton was prejudiced by counsel’s refusal to investigate and present his alibi.
I therefore respectfully dissent as to the matter noted.
. The majority's finding that Walton was not prejudiced may reflect the inadequacy of the record presented to us. This inadequacy is an object lesson in the propriety of our rule for claims like Walton’s: ordinarily, if based on evidence outside the trial record, claims of ineffective assistance of counsel may only be brought by motion under 28 U.S.C. § 2255 to vacate the conviction and sentence. United States v. Myers, 892 F.2d 642, 649 (1990). Mr. Walton may be able to pursue that opportunity to build a record.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9482154. Public record. Not legal advice.