United States Court of Appeals
For the First Circuit
No. 03-1075
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ REYES a/k/a JONATHAN CABALLERO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Oberdorfer,* Senior District Judge.
Norman S. Kominsky, for appellant.
F. Mark Terison, Senior Litigation Counsel, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.
December 19, 2003
*
Of the District of Columbia, sitting by designation.
TORRUELLA, Circuit Judge. A jury convicted defendant-
appellant José Reyes ("Reyes") of possession of cocaine with intent
to distribute and of conspiracy to commit the same offence. The
district court sentenced him to concurrent sentences of 210 months
in prison and six years of supervised release. Reyes appeals,
claiming that the district court erred in denying his counsel's
motion to withdraw and challenging the sufficiency of the evidence
on the conspiracy charge. Reyes also claims he was ineffectively
assisted by counsel.
After careful review, we dismiss Reyes's ineffective
assistance of counsel claim as premature and affirm the district
court's judgment regarding the other claims.
I. Background
A. Facts
On August 8, 2001, an agent of the Maine Drug Enforcement
Agency ("MDEA") contacted Ron Idano ("Idano"), Reyes's co-
defendant, seeking to purchase drugs. The MDEA agent arranged to
meet Idano to purchase two "8-balls" (7 grams total) of cocaine for
$500. Departing from the Howard Johnson's Hotel, Idano and
Benjamín Cruz ("Cruz"), another co-defendant, set out to complete
the sale. Idano and Cruz were arrested after the money and drugs
were exchanged.
The MDEA learned that Cruz had gone to the Howard
Johnson's Hotel before engaging in the drug sale. MDEA agents went
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to the Howard Johnson's to find Cruz's room. They knocked on the
door and Reyes opened it. The agents, disguised as hotel
employees, inquired if it was Cruz's room. Reyes replied in the
affirmative, but informed the disguised agents that Cruz was not in
the room. An agent then identified himself as a police officer,
causing Reyes to bolt away from the door, run into the bathroom,
and close the door. The agents forced their way into the bathroom
and retrieved a cocaine-filled plastic bag from Reyes's mouth.
Reyes was arrested.
The room at the Howard Johnson's contained loose cocaine,
a two-way radio, and receipts for a room at the Days Inn.
Subsequently, the Days Inn room was searched. Cocaine, digital
scales, a two-way radio, and marijuana were seized.
B. The trial and preceding events
On November 26, 2001, attorney Stephen Smith ("Smith")
was appointed to represent Reyes pursuant to the Criminal Justice
Act. One week before trial, Reyes filed a motion requesting that
Smith withdraw as counsel. The district judge held a hearing and
denied the motion. After denying the motion, Reyes informed Smith
and the trial judge that he would not attend his own trial. The
district judge urged Reyes to attend the trial, but he refused. On
the day of trial, the district judge again urged Reyes to be
present and informed him of his constitutional right to confront
witnesses. After Reyes again refused to attend, the district judge
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informed him he could change his mind at any time. Reyes did not
change his mind and was not present at the trial.
One hour before the trial began, Reyes's co-defendant,
Cruz, decided to testify against Reyes. Originally, Cruz had
refused to testify against Reyes. Cruz testified that he changed
his mind because he could get an additional two to four years added
to his own sentence if he refused to testify.
II. Analysis
A. Counsel's motion to withdraw
Smith submitted the motion to withdraw because Reyes
wanted new counsel. It has long been 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 (1932).
This court has cautioned, however, that "although the right extends
to indigent defendants, it does not afford them carte blanche in
the selection of appointed counsel." United States v. Myers, 294
F.3d 203, 206 (1st Cir. 2002) (citing United States v. Machor, 879
F.2d 945, 952 (1st Cir. 1989)). After 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." Id.
We review the denial of a motion to withdraw for abuse of
discretion. United States v. Woodard, 291 F.3d 95, 106-07 (1st
Cir. 2002); see also Myers, 294 F.3d at 207 (stating that the
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deferential standard makes "perfect sense" because "the trial court
is in the best position to assess the qualitative aspects of the
complex relationship between a defendant and his appointed
counsel"). In evaluating whether a district court abused its
discretion in deciding a motion to withdraw, this court considers
the following factors: "the timeliness of the motion, the adequacy
of the court's inquiry into the defendant's complaint, and whether
the conflict between the defendant and his counsel was so great
that it resulted in a total lack of communication preventing an
adequate defense." Woodard, 291 F.3d at 107 (quoting United
States v. Allen, 789 F.2d 90, 92 (1st Cir. 1986)).
1. The motion to withdraw was untimely
A defendant "has no right to representation by a
particular attorney when such representation would require undue
delay." United States v. Hallock, 941 F.2d 36, 44 (1st Cir. 1991)
(internal citations omitted). In evaluating a motion to withdraw,
a court must balance the "interest in retaining counsel of [the
defendant's] choice against the public's interest in the prompt,
fair and ethical administration of justice." United States v.
Richardson, 894 F.2d 492, 496 (1st Cir. 1990) (internal citations
and quotations omitted).
Smith was appointed as Reyes's counsel on November 26,
2001. Smith filed various suppression motions on Reyes's behalf.
The motions were denied by a magistrate judge on March 6, 2002. On
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April 1, 2002, Smith and Reyes learned that the case was set for
trial on May 6, 2002. On April 11, 2002, the district judge
adopted the magistrate judge's recommendation denying the
suppression motions. Smith waited until April 29, 2002, one week
before trial was to begin, to file the motion to withdraw.
Reyes claims that this motion was timely because it was
filed within two weeks of the district court's confirming the
magistrate judge's decision to deny Reyes's motions to suppress.
Reyes, however, had known of the magistrate judge's decision for
almost two months before the motion to withdraw was filed. The
motion to withdraw was thus untimely. It was filed months after
Reyes learned that the motion to suppress would probably be denied
and a mere week before the scheduled trial. See, e.g., Myers, 294
F.3d at 207 (holding a withdrawal motion untimely that was
submitted months after the conflict first developed and five days
before trial); Woodard, 291 F.3d at 107 (holding that a motion for
substitution of counsel thirteen days before trial was untimely);
United States v. Mangual-Corchado, 139 F.3d 34, 42 n.18 (1st Cir.
1998) (commenting in dicta that a motion to withdraw filed three
weeks before trial could be untimely).
2. The district court made an adequate inquiry
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."
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Myers, 294 F.3d at 207 (internal citation omitted). The "extent
and nature of the inquiry may vary in each case; it need not amount
to a full formal hearing." Woodard, 291 F.3d at 108.
The district court made an adequate inquiry into the
reasons Reyes sought new counsel. The district court scheduled a
hearing the day after it received the motion. At the hearing, the
district judge asked Smith if he was correct in concluding that the
reason Reyes wanted new counsel was to get a more experienced
lawyer. Smith informed the court that its conclusion was correct.
The district judge then asked Reyes why he wanted new
counsel. Reyes responded that he wanted new counsel because he had
recently learned he could be deemed a career criminal and wanted
the best possible counsel available. Specifically, he wanted a
lawyer with more trial experience than Smith.
Before making a final decision on the motion, the
district judge asked Reyes a second time if there were any other
reasons he needed a new lawyer. Reyes replied in the negative.
The district judge indicated that he was very familiar with Reyes's
case and that he thought Smith was a good attorney.
The district judge's inquiry was adequate. See, e.g.,
Myers, 294 F.3d at 205-07 (holding there was a sufficient inquiry
when the judge engaged in a conversation with the defendant and
with defendant's counsel regarding the reason for the motion to
withdraw); Woodard, 291 F.3d at 108 (holding that there was an
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adequate inquiry when the judge inquired of the defendant why there
was a dispute with counsel); Richardson, 894 F.2d at 497 (holding
there was an adequate inquiry when the judge questioned lawyers
regarding nature of dispute); Allen, 789 F.2d at 93 (holding there
was an adequate inquiry when the court "invited appellant to make
a statement, listened to his reasons for being dissatisfied with
his counsel, and found them to be without merit").
3. There was not a total breakdown of
communication
A defendant who seeks to have appointed counsel withdraw
must also 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," preventing an
adequate defense. Myers, 294 F.3d at 208.
It appears that Reyes and Smith communicated well both
before and after the motion to withdraw was filed. Smith had
represented Reyes at his arraignment, filed suppression motions on
Reyes's behalf, and attended the suppression hearings with Reyes.
In addition, Reyes's communications with Smith were extensive
enough for Reyes to learn that Smith did not have as much trial
experience as another lawyer Reyes knew.
Reyes claims that he showed a total breakdown of
communication by refusing to participate in his own trial. The
record, however, does not reveal that such a breakdown occurred.
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Smith and Reyes communicated during and after the motion to
withdraw hearing, as well as during the trial.
Reyes was unable to show a total breakdown in
communication, and the district court did not abuse its discretion
by holding that there was no such breakdown. See, e.g., United
States v. Pierce, 60 F.3d 886, 891 (1st Cir. 1995) (holding that
there was no abuse of discretion when the record revealed the
lawyer and defendant conversed and had some appreciation for each
other's opinions). Furthermore, a defendant cannot compel a change
to counsel by the device of refusing to talk with his lawyer.
The district court examined the timing of the motion to
withdraw, questioned the lawyer and defendant on why the motion was
filed, and concluded that there was no breakdown in communication
precluding the presentation of an adequate defense. See Myers, 294
F.3d at 208. This decision falls squarely within the realm of the
district court's discretion. See id.
B. Ineffective assistance of counsel
Smith filed a motion for a psychological examination of
Reyes after the trial but before sentencing. The motion was denied
without prejudice. Reyes's new counsel later filed a new motion
for psychological evaluation which was granted. Reyes argues for
the first time on appeal that Smith's failure to request a
psychological examination prior to trial amounted to ineffective
assistance of counsel.
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As this court has held, "with a regularity bordering on
the monotonous[,] . . . claims of ineffective assistance cannot
make their debut on direct review" but should be asserted to the
district court under 28 U.S.C. § 2255. United States v. Mala, 7
F.3d 1058, 1063 (1st Cir. 1993). An exception to this rule exists
where "the critical facts are not genuinely in dispute and the
record is sufficiently developed to allow reasoned consideration of
an ineffective assistance claim." United States v. Soldevila-
López, 17 F.3d 480, 485 (1st Cir. 1994) (quoting United States v.
Natanel, 938 F.2d 302, 309 (1st Cir. 1991)). In such a case, "an
appellate court may dispense with the usual praxis and determine
the merits of such a contention on direct appeal." Id.
The present case does not fall within this exception
because the district court did not make any findings of fact
regarding what Smith "knew, or should have known, at the time his
tactical choices were made and implemented." Id. (holding that an
ineffective assistance of counsel claim is premature at the
appellate level when the record did not show what counsel knew or
should have known when counsel did not request a psychological exam
until after trial, but before sentencing). The record shows that
Reyes wanted new counsel, but it does not show that Reyes was
incompetent to stand trial. More information regarding what Smith
knew or should have known is needed before a court can determine if
failing to request a psychological exam amounted to ineffective
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assistance of counsel. An ineffective assistance of counsel claim
that requires further factual determinations should be brought
through a collateral proceeding in district court under 28 U.S.C.
§ 2255. Id. (citing United States v. Sutherland, 929 F.2d 765, 774
(1st Cir. 1991)).
C. Conspiracy
Reyes argues that there was insufficient evidence
introduced at trial to support the jury's verdict convicting him of
conspiracy to possess cocaine with intent to distribute.1 The
guilty verdict will "stand unless, viewing the evidence in the
light most favorable to the prosecution, no reasonable jury could
have rendered" it. United States v. Nelson-Rodríguez, 319 F.3d 12,
27 (1st Cir. 2003) (citing United States v. Spinney, 65 F.3d 231,
234 (1st Cir. 1995)). "In applying this standard, no premium is
placed upon direct as opposed to circumstantial evidence . . . .
[a]nd in conducting its review, this court cannot . . . make
credibility judgements; [a] task . . . solely within the jury's
province." United States v. Hernández, 218 F.3d 58, 64 (1st Cir.
2000) (quoting United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.
1992)) (internal quotations omitted). If the evidence, "viewed in
the light most favorable to the verdict gives equal or nearly equal
1
Reyes also argues that there would be insufficient evidence to
convict him of possession with intent to distribute if there is
insufficient evidence of a conspiracy. We need not address this
argument because we find there was sufficient evidence to support
the conspiracy charge.
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circumstantial support to a theory of guilt and a theory of
innocence of the crime charged," then this court will reverse the
conviction. United States v. Morillo, 158 F.3d 18, 22 (1st Cir.
1998) (quoting United States v. Flores-Rivera, 56 F.3d 319, 323
(1st Cir. 1995)) (internal quotations omitted) (further citation
omitted).
There are three basic components to a drug conspiracy:
"[t]he existence of a conspiracy, the defendant's knowledge of the
conspiracy, and the defendant's voluntary participation in the
conspiracy." Nelson-Rodríguez, 319 F.3d at 27-28 (quoting United
States v. Gómez-Pabón, 911 F.2d 847, 852 (1st Cir. 1990)) (internal
quotations omitted). "Mere association" with conspirators or "mere
presence" during conspiracy activities "will not, standing alone,
be sufficient for conviction." Id. at 28.
A reasonable jury could have found Reyes guilty of a
conspiracy to distribute cocaine beyond a reasonable doubt. There
was both direct and circumstantial evidence supporting such a
verdict. See Nelson-Rodríguez, 319 F.3d at 28 (citing United
States v. Aponte-Suárez, 905 F.2d 483, 490 (1st Cir. 1990) (stating
that conspiratorial agreement may be inferred from circumstantial
evidence)).
First, Cruz testified that Reyes had been selling him
twenty grams of cocaine per day for a two month period. A single
isolated purchase of an illegal drug is not enough to establish a
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conspiracy. See United States v. Izzi, 613 F.2d 1205, 1210 (1st
Cir. 1980). Multiple sales over a span of time, however, can
constitute sufficient evidence to establish a conspiracy. See
United States v. Soler, 275 F.3d 146, 151 (1st Cir. 2002) (finding
three sales over a two-day period, with an inventory of heroin
suggesting a readiness to engage in future transactions, amounts to
evidence of a conspiracy).
Reyes challenges the sufficiency of the evidence on this
point because Cruz testified to avoid a harsher sentence. Indeed,
the jury was aware that Cruz might have gotten an additional two to
four years added to his sentence had he refused to testify.
Credibility judgments, however, are solely within the jury's
province and will not be disturbed by this court. See United
States v. Hernández, 218 F.3d 58, 64 (1st Cir. 2000); see also
Gómez-Pabón, 911 F.2d at 853 (holding that a jury's determination
of a witness's credibility will not be disturbed unless the
testimony is "incredible or insubstantial on its face"). The jury
could have discounted Cruz's testimony, but it did not. See, e.g.,
Gómez-Pabón, 911 F.2d at 853 (holding that evidence was not
rendered insufficient because it consisted largely of
uncorroborated testimony of a paid informer).
Second, Cruz identified the Howard Johnson's as the place
where he picked up the cocaine. Idano confirmed that he dropped
Cruz off at the Howard Johnson's to set up the drug transaction.
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When the agents knocked on the door to the Howard Johnson's room,
Reyes answered.
Reyes contends that his presence in the room is
insufficient to prove a conspiracy. Reyes is correct that mere
presence in a room where drugs are stored or drug transactions
occur is insufficient to prove membership in a conspiracy. See
United States v. Ocampo, 964 F.2d 80, 82 (1st Cir. 1992) (holding
that mere presence at the scene of a crime is insufficient to prove
membership in a conspiracy). Reyes's argument fails, however, when
viewing the evidence in the light most favorable to the verdict.
See Nelson-Rodríguez, 319 F.3d at 28.
The evidence suggests that Reyes was more than merely
present in the hotel room. For instance, upon learning that the
agents were police officers, Reyes ran to the bathroom and
attempted to swallow 3.1 grams of cocaine packaged in a plastic bag
containing nine small "bag corners." A mere visitor would not
attempt to ingest over 3 grams of cocaine to avoid its discovery by
police.
Furthermore, a subsequent raid of the Days Inn room led
agents to discover over eighty grams of cocaine, some of which was
wrapped in a plastic bag containing nine small "bag corners" -- the
same type of packaging as the cocaine Reyes tried to ingest. See
Soler, 275 F.3d at 151 (finding similarly marked bags of heroin to
be evidence of a conspiracy).
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Last, the Howard Johnson's contained a two-way radio set
to the same channel as the two-way radio found at the Days Inn --
the hotel room where the bulk of the cocaine was stored. It would
not be unreasonable for the jury to conclude that the occupant of
the Howard Johnson's room, Reyes, worked together with the occupant
of the Days Inn room to distribute the cocaine. By having two
rooms, the conspirators might have hoped that if the drugs were
traced to the point of distribution, the Howard Johnson's room, the
bulk of the cocaine would never be discovered since it was stored
in the Days Inn room. The testimony of Cruz and the actions of
Reyes support such a finding by the jury.
Defendants "challenging convictions for insufficiency of
evidence face an uphill battle on appeal" and, like Sisyphus, Reyes
does not reach the top. See Hernández, 218 F.3d at 64.
III. Conclusion
We therefore affirm the district court's judgment without
prejudice to Reyes's right to raise his ineffective assistance of
counsel claim by filing a timely petition for post-conviction
relief. See 28 U.S.C. § 2255.
Affirmed.
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