UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4382
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
XAVIER VIDAL JENNETTE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:06-cr-00147-BR)
Argued: May 14, 2010 Decided: July 2, 2010
Before GREGORY, AGEE, and DAVIS, Circuit Judges.
Vacated and remanded by unpublished opinion. Judge Gregory
wrote the opinion, in which Judge Agee and Judge Davis joined.
ARGUED: Samuel A. Forehand, SAMUEL A. FOREHAND, PA, Raleigh,
North Carolina, for Appellant. Kristine L. Fritz, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: George E. B. Holding, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:
Xavier Jennette (“Jennette”) appeals the sentence imposed
after he was convicted of aggravated identity theft and wire
fraud in the Eastern District of North Carolina. In particular,
Jennette argues that the district court abused its discretion in
denying his motion for substitute counsel. We hold that the
district court erred in denying Jennette substitute counsel for
his sentencing, and thus vacate his sentence and remand his case
to the district court for resentencing. 1
I.
In October 2003, Jennette was hired to work as the
facilities security officer at Object Science Corporation
(“OSC”), a government information technology contracting firm.
In that capacity, he managed employees’ personal information
that was sent to the Department of Defense in order to maintain
the employees’ security clearances. He alone managed the access
to the secure personal information database.
In November 2004, Jennette left OSC and moved to New Bern,
North Carolina. There, he reconnected with his former
1
As we vacate Jennette’s sentence because he was denied
substitute counsel, we do not address the other two arguments he
raises: that the district court clearly erred in applying
offense level enhancements and departing above the guidelines
range; and that delays in filing his transcript on appeal denied
him due process.
2
girlfriend, Toya Sadler (“Sadler”). Through Sadler, Jennette
met Aiesha Horton (“Horton”). In July 2005, he asked Horton to
obtain a mobile phone for him and provided her with a list of
names and social security numbers to use to set up the account.
The list contained the personal information of employees of OSC.
Jennette selected Kimberly Barrus’ name and information from the
list to use to obtain the phone. Horton ended up procuring six
phones that day in Barrus’ name.
Because he was successful in using another person’s
information to obtain phones, Jennette found other ways to use
the list. With Sadler, he acquired a Wal-Mart Discover Card
using Jessica Nelson’s information on July 10, 2005. They used
the card to make purchases at restaurants, gas stations,
furniture stores and Wal-Mart. After Jennette was arrested,
some of the furniture they purchased was found at his mother’s
house.
Horton kept a copy of the list that Jennette had showed her
when she obtained the phones, and Anthony Wallace (“Wallace”),
her boyfriend, used it to obtain credit. Wallace, with
Jennette’s help, bought between fifty and seventy mobile phones,
which they resold on the street. They made additional money by
calling the phones that they sold and asking for payment for the
phone service while posing as a Sprint representative. Finally,
Wallace and Jennette used the list to obtain credit at Target,
3
Sears and Lowe’s where they bought electronics and tools to
resell and pawn. After Wallace was arrested, a printout from
the database used to store OSC employees’ personal information
was found in his car.
Jennette was indicted with Sadler, Horton, and Wallace in a
eleven-count indictment charging them with conspiracy (Count
One), wire fraud (Counts Two through Eight), aggravated identity
theft (Counts Nine and Ten), and obstruction of justice (Count
Eleven). Counts Six through Eight and Eleven were dismissed by
the court upon motion by the government prior to trial.
Jeanette was tried by a jury. During trial, he took the stand
in his own defense. He explained that he often printed copies
of the list of OSC employees and their personnel information for
his weekly meetings with personnel managers. As for the list
found in Wallace’s car, Jennette acknowledged that he was the
one who printed it, but he denied any knowledge of the identity
theft scheme. He stated that he did not know how the list was
removed from OSC and how Sadler and the others had come to
possess it. He testified that the mobile phone and furniture
were both gifts from Sadler. The jury found him guilty on all
of the remaining counts.
Jennette was scheduled for sentencing on March 7, 2007. On
February 21, 2007, approximately two weeks before sentencing,
his counsel moved for a continuance and moved to withdraw from
4
representation because “communications between counsel and the
defendant have broken down to the point that it would be best
for all parties if new counsel from outside the Office of the
Federal Public Defender represents Mr. Jennette.” J.A. 1057. 2
The government opposed the motion on the basis that the motion
to withdraw did not state a valid reason for withdrawal, it was
untimely, and the continuance would burden the victims who
wanted to testify at sentencing. A week later, the government
made a motion for an upward departure from the guidelines on the
basis that the guidelines sentence understated the harm caused.
In particular, the government argued that Jennette harmed 124
current and former OSC employees who were not considered victims
under the guidelines.
At sentencing, the district court took up the motion to
withdraw. Defense counsel represented that when he met with
Jennette to go over the presentence report (“PSR”), their
communication broke down so significantly that he did not
believe they could cooperate going forward. Counsel stated that
the root of the problem was that Jennette believed that he was
“cast aside” at trial, and as a result they had not even been
able to agree on what factual issues to challenge at sentencing.
The court asked Jennette for his view and he stated, “Well your
2
“J.A. __” refers to the joint appendix submitted by the
parties on appeal.
5
honor, since, before, during, and after the trial, I have been
severely dissatisfied with the representation that I have
received from counsel.” J.A. 1080-81. In particular, Jennette
was dissatisfied with counsel’s failure to raise certain issues
important to him at trial and their inability to agree on
objections to the PSR. Indeed, Jennette stated that they had
been unable to even review the PSR because they could not
communicate effectively.
The court denied the motion and decided to give Jennette
the chance to make all of his objections to the PSR in open
court by going through it with the judge. Jennette represented
that he had already written down all of his objections, but that
the paper was at the jail because he was told that he could not
bring anything to court. As the judge went over the PSR,
defense counsel made objections for Jennette; Jennette did not
speak at all. Defense counsel objected to all the sentencing
enhancements. He also argued against the government’s motion
for upward departure on the basis that it was only speculation
as to the harm suffered, because not every employee’s
information was stolen and used and there was no basis
whatsoever for fixing the loss at $1000 per person. The court
continued the sentencing in order to have time to consider the
motion for upward departure.
6
On March 30, 2007, the court reconvened and imposed
sentence. The court granted the government’s motion for upward
departure on the basis that Jennette occupied a position of
trust with respect to the victims and caused substantial harm to
at least thirty-nine victims, resulting in a guidelines range of
seventy-eight to ninety-seven months. Jennette was then
sentenced to ninety-seven months imprisonment on Counts One
through Five and twenty-four months on Count Nine to run
consecutively. Jennette timely appealed.
II.
The denial of a motion for substitution of counsel is
reviewed for abuse of discretion. United States v. Corporan-
Cuevas, 35 F.3d 953, 956 (4th Cir. 1994).
III.
Jennette argues on appeal that his sentence should be
vacated because the district court abused its discretion in
denying his motion for substitution of counsel. Both he and his
attorney represented that there had been a complete breakdown of
communication between them such that they had not even reviewed
the PSR together before sentencing. The government argues that
mere allegations of dissatisfaction with counsel are
insufficient to trigger the appointment of substitute counsel,
7
and if there was any error it was harmless because the district
court went over the PSR with the defendant. We, however, agree
with Jennette and hold that the district court abused its
discretion in denying the motion.
A.
While a criminal defendant has a right to counsel of his
own choosing, that right is not absolute. Powell v. Alabama,
287 U.S. 45, 52 (1932); Sampley v. Attorney Gen. of N.C., 786
F.2d 610, 612 (4th Cir. 1986). In particular, a defendant’s
right to choose his own counsel is limited so as not to “deprive
the courts of the exercise of their inherent power to control
the administration of justice.” United States v. Gallop, 838
F.2d 105, 108 (4th Cir. 1988). It then follows that a
defendant’s right to receive substitute counsel after the
court’s initial appointment is similarly limited. Thus, a
defendant must show good cause as to why he should receive
substitute counsel. Id. In general, good cause exists when
denying substitute counsel would deny the defendant a
constitutionally adequate defense. United States v. Johnson,
114 F.3d 435, 443 (4th Cir. 1997) (“A total lack of
communication is not required. Rather an examination of whether
the extent of the breakdown prevents the ability to conduct an
adequate defense is the necessary inquiry.”); United States v.
Mullen, 32 F.3d 891, 897 (4th Cir. 1994).
8
The district court has discretion to decide whether
substitution of counsel is proper. Gallop, 838 F.2d at 108. In
making its decision, the district court must consider both the
defendant’s reason for seeking substitution and the government’s
interest in proceeding without a continuance. Morris v. Slappy,
461 U.S. 1, 11-12 (1983); United States v. Reevey, 364 F.3d 151,
157 (4th Cir. 2004). In reviewing the district court’s decision
on a motion for substitution, this Court looks at three factors:
the “[t]imeliness of the motion; [the] adequacy of the court’s
inquiry into the defendant’s complaint; and whether the
attorney/client conflict was so great that it had resulted in a
total lack of communication preventing an adequate defense.”
Gallop, 838 F.2d at 108.
B.
The Gallop factors counsel that the district court abused
its discretion in denying the motion to substitute. First,
Jennette’s motion was timely. The motion was filed two weeks
before his sentencing was scheduled. Though at the time it was
filed there were only two days before the defendant’s objections
to the PSR were due, the motion was still timely because it gave
plenty of time for new counsel to be appointed and sentencing to
continue. Compare Mullen, 32 F.3d at 896 (holding that a motion
for substitution filed twenty-three days before trial was
timely), with United States v. Dukes, 1998 W.L. 188634, at *4
9
(4th Cir. Apr. 21, 1998) (unpublished) (holding that a motion
for substitution filed ten days before the start of a multi-
defendant trial was untimely). The government’s argument
regarding the other codefendants and coordination with the
victims that wished to make a statement is somewhat
disingenuous. The government can point to no particular victim
that it anticipated testifying, and indeed no testimony was
presented at sentencing. Additionally, Jennette had never made
a motion for substitution or a continuance before. When a
defendant makes a successive motion for continuance, the court
may often scrutinize his reasons for seeking the substitution
more carefully. See Gallop, 838 F.2d at 108 (discussing how a
prior motion for substitution and continuance followed by
another motion for substitution five days prior to trial
betrayed the defendant’s motivation to delay the trial and
rendered his request untimely). Instead, here Jennette’s motion
to substitute counsel was timely and was his only request to do
so.
As to the second Gallop factor, the district court did make
an adequate inquiry into the cause of the problems between
counsel and the defendant. Mullen, 32 F.3d at 896 (“When a
defendant raises a seemingly substantial complaint about
counsel, the judge has an obligation to inquire thoroughly into
the factual basis of defendant’s dissatisfaction.” (citation
10
and internal quotation marks omitted)). The district judge here
asked both defense counsel and the defendant about the problems
they were experiencing, both in terms of cause and effects, and
received lengthy replies on the record.
Although the district court adequately addressed the second
Gallop factor, the extent of the breakdown in communication
between Jennette and his counsel was so significant that it
mandated substitution of counsel under the third factor. As
stated above, the defendant must have good cause for seeking
substitute counsel, and a breakdown in communication which
denies the defendant an adequate defense constitutes good cause.
Here, the evidence before the district court was that
communication had broken down between the defendant and his
counsel so significantly that they could not come to an
agreement on what objections to make to the PSR, and indeed had
not even had the chance to go over it together. The government
argues that instead of a breakdown in communication, Jennette
only generally disagreed with how counsel had handled the trial.
While generalized disagreement with counsel is not a sufficient
reason for substitution, here the adverse impact was beyond mere
disagreement, such that there was a “total lack of
communication” in this case. Gallop, 838 F.2d at 109. Both
defense counsel and Jennette stated that they had not had a
chance to review the PSR together, and indeed had not really
11
spoken since the trial concluded, certainly a fundamental step
for adequate representation at sentencing.
We must therefore determine whether that lack of
communication deprived the defendant of an adequate defense at
sentencing. The government argues that because the district
judge went over the PSR with Jennette in open court, any error
in failing to substitute counsel was harmless. This argument
must fail for two reasons. First, the district court must have
found a significant problem with communication between Jennette
and his counsel, as the district court conducted what otherwise
would have been counsel’s duty, the initial review of the PSR
with the defendant. The district court’s assumption of this
role demonstrated that it had found merit in counsel’s and
Jennette’s claim that there was a breakdown in communication.
Although laudable, going over the PSR with the district judge in
open court can hardly be said to substitute for a private,
attorney-client-privileged conversation with counsel before
sentencing even begins. Additionally, though defense counsel
did make objections, those objections cannot be said to have
been effective because they were pro forma and without the
benefit of consultation with the defendant beforehand. 3 See
3
Indeed, counsel represented at oral argument that during
sentencing, had counsel and Jennette been able to work together,
(Continued)
12
Mullen, 32 F.3d at 897 (discussing how the inability to confer
with the defendant before trial denied the defendant an adequate
defense).
Therefore, given the effects of the breakdown in
communication, the failure to substitute Jenette’s counsel was
an abuse of discretion.
IV.
For the reasons detailed above, we vacate Jennette’s
sentence and remand his case to the district court for
resentencing.
VACATED AND REMANDED
counsel likely would have introduced testimony from several
witnesses, including Jennette’s family and supervisors at work.
13