Writing for a unanimous panel, Circuit Judge Diane S. Sykes said no precedent obligated the trial judge to pause proceedings and conduct a fresh inquiry into Perry's reasons for changing his mind once trial was underway.
"Nothing in our caselaw requires a 'Faretta-lite' inquiry in this situation—a mandatory colloquy to consider the defendant's motives and weigh the length of the delay—and we see no basis to impose such a requirement," Sykes wrote. Circuit Judges Amy J. St. Eve and Candace Jackson-Akiwumi joined the opinion.
Perry was indicted in 2018 on eight counts of sex trafficking minors under 18 U.S.C. § 1591. According to the opinion, he refused to cooperate with five appointed lawyers between his indictment and trial, filed numerous pro se motions, and pursued what the panel described as "baseless claims of prosecutorial misconduct, racial bias, and corruption." The case was originally assigned to Judge Harry Leinenweber, who conducted two full Faretta colloquies before allowing Perry to represent himself.
During an earlier hearing on a defense attorney's motion to withdraw, Leinenweber warned Perry that "I'll appoint one more attorney for you, and that's it. You're going to either have to go with the next one or to represent yourself." After two more lawyers were appointed and Perry again sought to fire counsel, he told the court at a subsequent status conference, "I want to go pro se, and I'm fine with that," the opinion recounts. The judge then convened the second formal Faretta colloquy and accepted Perry's waiver.
After the jury was seated and Perry began cross-examining the government's first witness, he repeatedly interjected with his own version of events and tried to introduce evidence improperly, the panel said. He then asked for a lawyer. The judge denied the request as untimely and refused the government's suggestion to conduct a colloquy on the change of heart.
In denying a post-trial motion, the district judge explained that appointing new counsel mid-trial would have "inevitably" caused delay because "standby counsel was not up to speed on the complex issues of the case," and that concern was "underscored" by Perry's "repeated successful and unsuccessful attempts … to postpone the trial."
The Seventh Circuit said the trial court had "substantial discretion to enforce a waiver of counsel, especially after trial starts," quoting prior circuit precedent that "[i]t is well within the discretion of the court to deny as untimely requests for counsel made after meaningful trial proceedings have begun."
Sykes added a second basis for affirmance: "The Sixth Amendment does not entitle a defendant to an endless succession of appointed counsel." When a defendant has repeatedly refused to cooperate, she wrote, a judge may require him "to either work with his current attorney or proceed pro se."
Perry was convicted on the seven remaining counts after the government dismissed one charge before trial. Judge Edmond E. Chang, who took over the case after Leinenweber's death, sentenced Perry to 480 months in prison. Perry is represented on appeal by James Vanzant and Andrew Finke.