United States v. Myers

United States Court of Appeals
For the First Circuit

No. 01-2059

UNITED STATES OF AMERICA,

Appellee,

v.

JOHN WAYNE MYERS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

Before

Selya and Lynch, Circuit Judges,

and Schwarzer,* Senior District Judge.

Tina Schneider for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.

June 25, 2002

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*Of the Northern District of California, sitting by designation.
 SELYA, Circuit Judge. A jury in the District of Maine

found defendant-appellant John Wayne Myers guilty of being a felon

in possession of ammunition and firearms. After the district court

sentenced him as an armed career criminal, Myers appealed. His

principal challenge is to the district court's refusal to appoint

substitute counsel for him at sentencing. Discerning no infirmity

in this or any other respect, we affirm the conviction and

sentence.

I.

Background

The appellant is a recidivist criminal who, until shortly

before his most recent arrest, resided in Wisconsin. In October of

2000, he had a dispute with his parole officer and fled the state.

The Wisconsin authorities warned their Maine counterparts that the

appellant might attempt to contact or harm Gene Richardson (a Maine

resident). When a deputy sheriff inquired, he found that the

appellant had approached Richardson but had not behaved menacingly.

The authorities nonetheless elected to keep an eye on the

situation.

The appellant soon returned to the Richardson homestead.

The deputy, assisted by several state troopers, attempted to detain

him. A vehicular chase led to the appellant's apprehension.

An inventory of the appellant's automobile disclosed four

boxes of bullets. A subsequent search of the area traversed during

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the chase — prompted by a report that the appellant had thrown an

object out of his car window while attempting to escape — yielded

a .357 magnum handgun. Later, a citizen turned in a .22 caliber

pistol found in the same general vicinity. Further investigation

revealed that the ammunition and the weapons belonged to a resident

of Houlton, Maine, who claimed that they had been pilfered. The

appellant denied any knowledge of the bullets, the guns, or the

theft.

On November 29, 2000, a federal grand jury returned a

two-count indictment that charged the appellant with being a felon

in possession of ammunition and firearms. See 18 U.S.C. §§

922(g)(1), 924(e) (2000). The appellant was without funds, and,

pursuant to the Criminal Justice Act, id. § 3006A, the district

court appointed counsel for him in the person of attorney Peter

Rodway. From the start, the two men squabbled over defense

strategy. Nevertheless, the appellant voiced no complaint to the

district court and Rodway soldiered on, representing the appellant

vigorously both at a suppression hearing and at trial.

Notwithstanding Rodway's valiant efforts, the jury found

the appellant guilty on both counts. The district court scheduled

the disposition hearing for July 10, 2001 (some four months after

the verdict date). The probation department prepared and delivered

the presentence investigation report (PSI Report) well in advance.

Rodway reviewed it with the appellant.

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 Five days before the putative sentencing date, Rodway

moved to withdraw as counsel. In his motion, he explained that the

appellant had dismissed him and that "[t]he attorney-client

relationship ha[d] broken down to the point that counsel is not

able to effectively communicate with the [client]." At a chambers

conference held on July 10, Rodway reiterated his desire to

withdraw. The judge prudently decided to conduct an inquiry.

In open court, Judge Carter engaged in an extensive

three-way colloquy with Rodway and the appellant. The judge began

by querying Rodway about his reasons for moving to withdraw.

Rodway explained that he and the appellant had been at loggerheads

for some time, but that, as of late, communication had become

especially difficult. When prompted to furnish specifics, Rodway

replied only that he thought "it [was] not a good idea" for him to

continue to represent the appellant.

Judge Carter then asked the appellant why the public

should bear the expense of retaining a new lawyer. The appellant

responded that he was dissatisfied with the defense that Rodway had

offered at trial. When the appellant finished his soliloquy,

Rodway interjected that the appellant's comments laid bare the root

of the current conflict: Rodway wanted to concentrate his energies

on the sentencing phase whereas the appellant insisted upon

rehashing the trial. Rodway suggested that a new lawyer might have

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a better chance of impressing upon the appellant the need to get

beyond a battle that already had been fought and lost.

Having heard from all parties in interest, Judge Carter

denied the motion. He pointed out that Rodway had done a

creditable job at trial, and that, in all events, the reasons given

by the appellant in support of his request for the appointment of

substitute counsel did not amount to good cause.

The proceeding then morphed into a disposition hearing.

Rodway interposed numerous objections to the PSI Report, argued

them staunchly, and conferred with his client when the occasion

demanded. When all was said and done, the judge sentenced the

appellant at the top of the applicable guideline sentencing range

— imposing a 235-month incarcerative term — but rejected the

government's ardent request that he depart upwardly for reckless

endangerment during flight. See USSG §2K2.1(b)(4) (2001). This

appeal followed.

II.

Analysis

We subdivide our analysis into segments (corresponding to

the appellant's arguments).

A.

The Sixth Amendment Claim

The appellant's principal assertion is that the district

court's denial of the motion to withdraw violated his Sixth

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Amendment right to counsel of his choice. We first limn the

applicable legal standards and then address the claim.

1. The Standards. From a theoretical standpoint, the

appellant's principal assertion rests on a solid foundation. The

Supreme Court long has recognized that a criminal defendant "should

be afforded a fair opportunity to secure counsel of his own

choice." Powell v. Alabama, 287 U.S. 45, 53 (1935). This is a

right of the highest priority. United States v. Proctor, 166 F.3d

396, 401 (1st Cir. 1999). We caution, however, that although the

right extends to indigent defendants, it does not afford them carte

blanche in the selection of appointed counsel. See United States

v. Machor, 879 F.2d 945, 952 (1st Cir. 1989) (declaring that the

right "is not absolute"); see generally Wheat v. United States, 486

U.S. 153, 159 (1988) (explaining that "the essential aim of the

[Sixth] Amendment is to guarantee an effective advocate for each

criminal defendant rather than to ensure that a defendant will

inexorably be represented by the lawyer whom he prefers").

Once a court appoints an attorney to represent an

accused, a subsequent decision to replace that attorney is

committed to the informed discretion of the appointing court. In

exercising that authority, the court must take into account the

totality of the circumstances then obtaining (including the need

for economy and efficiency in the judicial process). United States

v. Richardson, 894 F.2d 492, 496 (1st Cir. 1990); United States v.

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Poulack, 556 F.2d 83, 86 (1st Cir. 1977). This means that there

must be good cause for rescinding the original appointment and

interposing a new one. United States v. Allen, 789 F.2d 90, 92

(1st Cir. 1986). Good cause depends on objective reasonableness;

it cannot be gauged solely by ascertaining the defendant's state of

mind. In other words, "[l]oss of trust, standing alone, is

insufficient." United States v. Woodard, ___ F.3d ___, ___ (1st

Cir. 2002) [No. 01-2229, slip op. at 22]. By like token, not every

bump in the road entitles a criminal defendant to have his lawyer

cashiered and a new one appointed. See generally Morris v. Slappy,

461 U.S. 1, 14 (1983) (holding that the Sixth Amendment does not

"guarantee[] a 'meaningful relationship' between an accused and his

counsel"). At a bare minimum, good cause demands that a

defendant's professed loss of confidence in his attorney be founded

upon a legitimate reason.

Under ordinary circumstances, an appellate court's

inclination will be to defer broadly to the trial court in regard

to such a decision. Deference makes perfect sense, for the trial

court is in the best position to assess the qualitative aspects of

the complex relationship between a defendant and his appointed

counsel. Consequently, that court is the logical arbiter of

whether (and under what circumstances) such a defendant requires

substitute counsel. We will overrule such a decision only if it

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constitutes an abuse of the trial court's discretion. United

States v. Diaz-Martinez, 71 F.3d 946, 950 (1st Cir. 1995).

Although this is a deferential standard of review, it

does not signify that the court of appeals will rubberstamp a trial

court's rulings on such matters. When a defendant seeks the

replacement of appointed counsel, we expect the trial court to

conduct an appropriate inquiry into the source of the defendant's

dissatisfaction. See Allen, 789 F.2d at 92. A failure to inquire

may result in the reversal of an ensuing conviction. United States

v. Prochilo, 187 F.3d 221, 228-29 (1st Cir. 1999). Nor is that

all: in assessing the district court's denial of such a motion, we

will consider not only the adequacy of the court's inquiry but also

factors such as the timeliness of the motion for substitution and

the nature of the conflict between lawyer and client. Allen, 789

F.2d at 92. We will give special attention to the trial court's

conclusion that the conflict stopped short of "result[ing] in a

total lack of communication preventing an adequate defense." Id.

2. The Ruling Below. In this instance, the appellant

posits that the district court abused its discretion by denying the

withdrawal motion. In his view, the court took aim at the wrong

target, zeroing in on Rodway's performance rather than the

deteriorated attorney-client relationship. The proper focus, he

continues, would have shown that a serious conflict existed,

warranting the relatively modest inconvenience involved in a

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postponement of sentencing to allow new counsel to enter the case

and get up to speed.

This argument has a patina of plausibility. After all,

there was evidence of a strained relationship between Rodway and

the appellant, and postponing a sentencing is generally not as

disruptive as postponing an impending trial. There is, however,

another side to the story.

Rodway's motion came late in the day: it was filed

months after the conflict first developed, and a mere five days

before the scheduled sentencing. Nor did the appellant ever

explain his failure to register a complaint earlier in the

proceedings. This chronology plainly militates against the

granting of a motion for substitution of counsel. See, e.g.,

United States v. Mangual-Corchado, 139 F.3d 34, 42 n.18 (1st Cir.

1998); Richardson, 894 F.2d at 497-98.

Then, too, the district court responded appropriately to

the motion. While there is no invariable model for a trial court's

inquiry into an allegedly embattled attorney-client relationship,

Woodard, ___ F.3. at ___ [slip op. at 21], the inquiry conducted

here comprised a thoughtful probe into the nature and duration of

the asserted conflict. The adequacy of the inquiry lends added

weight to the trial court's ultimate determination. See Allen, 789

F.2d at 92; see also United States v. Pierce, 60 F.3d 886, 891 (1st

Cir. 1995).

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 Last — but far from least — the nature of the conflict is

itself revealing. Though questioned, neither protagonist offered

the court specifics as to why Rodway could not function effectively

on the appellant's behalf at sentencing. Indeed, the discord

between lawyer and client centered exclusively on trial issues —

and the trial had ended. What remained was the disposition

hearing, and Rodway and the appellant had no apparent disagreement

relevant to any sentencing issues.

Let us be perfectly clear. We can envision circumstances

in which, even after the conclusion of trial, a falling-out between

a defendant and his counsel so threatens the former's rights that

the appointment of a new attorney is warranted. Here, however, no

such circumstances are evident. By the time that Rodway moved to

withdraw, the probation department had completed its interviews and

compiled the PSI Report. Counsel's remaining tasks — chiefly, to

argue whether objections to the PSI Report should be sustained,

where within the guideline sentencing range the appellant should be

placed, and why no upward departure should be essayed — bore no

relationship to the "trial-type" issues that had produced rancor

between attorney and client. A defendant who seeks the replacement

of appointed counsel must show more than the mere fact of a

disagreement; he must show that the conflict between lawyer and

client was so profound as to cause a total breakdown in

communication, precluding the lawyer from effectively litigating

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the issues remaining in the case.1 Cf. Allen, 789 F.2d at 92

(explaining that the trial court must determine whether the

conflict "was so great that it resulted in a total lack of

communication preventing an adequate defense").

The short of the matter is that the information before

the district court was susceptible of two rational (though

opposite) conclusions. Which conclusion prevailed depended

entirely on what inferences the presider chose to draw. Given this

type of standoff, the tie-breaker often will be the standard of

review. So it is here.

The district court carefully examined the timing of the

withdrawal motion, inquired into its basis, questioned Rodway and

the appellant in depth about their reasons for seeking replacement

counsel, and concluded that the acrimony between the two did not

jeopardize the effective performance of the legal services yet to

be rendered. In so doing, the court was entitled to weigh factors

such as the timing of the motion, Rodway's intimate knowledge of

the case, the likely value of that knowledge at sentencing, the

conclusory nature of the reasons offered by the appellant and the

lawyer to support the request for new counsel, and the absence of

any discernible disagreement about sentencing issues. The district

1
Of course, there will be infinite variations on this theme.
One such variation includes situations in which an irreconcilable
conflict develops between lawyer and client regarding an issue
properly within the client's control. Even then, however, the
conflict must be material to an issue that is still live.

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court's ultimate conclusion — that no good cause existed for the

appointment of new counsel and the concomitant delay in sentencing

that such an appointment would entail — was a quintessential

judgment call. This judgment call fell squarely within the realm

of the court's discretion. See Machor, 879 F.2d at 952-53

(explaining that when the presider had made due inquiry in respect

to a request for replacement of counsel and reached a reasonable

conclusion, the decision should be upheld); see also Richardson,

894 F.2d at 497-98 (rejecting a similarly postured appeal when the

district court supportably determined that the defendant had failed

to demonstrate a conflict sufficient to render counsel's

representation inadequate).

B.

The Equal Protection Claim

The appellant next argues that the district court

abridged his rights under the Fifth Amendment's Equal Protection

Clause by telling him: "You have to convince me that the public

should bear the expense of appointing you a new lawyer." The

appellant contends that this statement evinces impermissible

discrimination on the basis of indigency. We do not agree.

Read in context, we take the district court's remark as

a comment directed at the appellant's desire to switch horses in

mid-stream, not at his indigency. Even if the latter were the

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case, the appellant's argument would fail for a multitude of

reasons. We mention only three.

In the first place, Rodway continued to represent the

appellant to the bitter end, and represented him proficiently.

Thus, the appellant was at no time deprived of his constitutional

right to counsel. In the second place, wealth is not a suspect

classification for purposes of the Equal Protection Clause. See

San Antonio Ind. Sch. Dist. v. Rodriguez, 411 U.S. 1, 29 (1973).

And, finally, the appellant's indigency did not cause a complete

deprivation of the right to counsel (and, therefore, no violation

of the Equal Protection Clause exists). Id. at 23-24 (holding that

there can be no equal protection violation when "lack of personal

resources has not occasioned an absolute deprivation of the desired

benefit"). For these reasons, the appellant's second claim

founders.

C.

The Pro Se Brief

There is one more hill to climb. The appellant has filed

a supplemental pro se brief in which he raises several arguments

addressed to the conduct of the trial and the sufficiency of the

government's proof. He makes three main points: (1) the deputy

relied on an unsigned Wisconsin warrant to instigate the arrest;

(2) the government suppressed exculpatory evidence and introduced

false testimony in its case in chief; and (3) the government failed

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to forge a chain of custody sufficient to link the guns and

ammunition to the appellant. This asseverational array seems

better suited to a petition for post-conviction relief. See 28

U.S.C. § 2255 (2000). We nonetheless explain briefly why, to the

extent (if at all) that the arguments are cognizable on direct

review, we find them unpersuasive.

First, it is beyond cavil that the Wisconsin authorities

informed their Maine counterparts that the appellant was in

violation of his parole. On the basis of that information, the

latter had sufficient reason to stop the appellant's vehicle. See

United States v. Hensley, 469 U.S. 221, 231 (holding that "police

in one jurisdiction [may] act promptly in reliance on information

from another jurisdiction" in such situations). The ensuing chase

furnished unassailable grounds for the eventual arrest.

Second, the record before us does not support an

inference of wrongdoing on the part of the government. While there

were some inconsistencies in the testimony of various police

officers (effectively exploited by Rodway in both cross-examination

and closing argument), the record reveals nothing amounting to

either a Brady violation, see Brady v. Maryland, 373 U.S. 83, 87

(1963) (holding that "suppression by the prosecution of evidence

favorable to an accused . . . violates dues process where the

evidence is material either to guilt or to punishment"), or the

knowing use of perjurious testimony, see Napue v. Ill., 360 U.S.

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264, 269 (1959) (stating that "a conviction obtained through use of

false evidence, known to be such by representatives of the State,

must fall under the Fourteenth Amendment"). If there is more light

to be shed on these allegations, the appellant is free to develop

them on a petition for post-conviction relief.

Finally, the proof establishing a chain of custody in

this case was ample. Various witnesses described in detail how

they came upon the boxed bullets and the firearms, respectively,

and what they did with those items prior to trial. Given the

circumstantial evidence here (i.e., that ammunition was found

inside the car that the appellant had been driving, that the

appellant had been observed throwing an object out of the car

window, that both guns were found near the scene of the chase, and

that the guns and ammunition had a common origin), no more was

exigible. The links in a chain of custody need not be welded to

one another, but, rather, may be more loosely connected. See

United States v. Ladd, 885 F.2d 954, 957 (1st Cir. 1989)

(explaining that "the prosecution's chain-of-custody evidence must

be adequate — not infallible"). To the extent that there were any

weak links in the instant chain — notably, the time between the end

of the chase and the time when the guns were found — their effect

on the authenticity of the evidence was a matter within the

exclusive province of the jury. See id.

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 III.

Conclusion

We need go no further. We have painstakingly reviewed

the record, the briefs, and the arguments ably presented by

counsel. For aught that appears, the appellant was fairly tried,

justly convicted, and lawfully sentenced.

Affirmed.

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