United States Court of Appeals
For the First Circuit
No. 03-1634
UNITED STATES,
Appellee,
v.
ENRIQUE MOTA-SANTANA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Torruella, Circuit Judge,
Coffin and Stahl, Senior Circuit Judges.
H. Manuel Hernandez on brief for appellant.
H. S. Garcia, United States Attorney, Sonia I. Torres-Pabon,
Assistant United States Attorney, and Thomas F. Klumper, Assistant
United States Attorney, on brief for appellee.
December 8, 2004
COFFIN, Senior Circuit Judge. The issue raised in this appeal
is whether the district court committed reversible error in its
inquiry into defendant-appellant's complaints against his retained
counsel and its refusal to appoint new counsel.
Defendant was indicted for conspiring with two co-defendants
to import cocaine and heroin into the United States in violation of
21 U.S.C. § 963 over a two year period, beginning in late 2000.
Defendant's role was to recruit and secure financing for drug
couriers who would travel in Caribbean cruise ships and transport
drugs from Curacao in the Netherlands Antilles to St. Thomas, U.S.
Virgin Islands. Over the period of the conspiracy, defendant was
alleged to have recruited at least ten couples.
Defendant was indicted on July 31, 2002. He first refused a
court appointed counsel, then employed counsel retained by his
family, and finally substituted new retained counsel, Raymond
Sanchez-Maceira, at the end of August. After a plea agreement had
been entered into in December, defendant expressed dissatisfaction
with Sanchez. Both defendant and Sanchez requested that Sanchez be
allowed to withdraw and that new counsel be appointed. The court
refused both requests. We affirm.
The Facts
The history of the relationship between defendant and Sanchez
is the following:
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On December 4, 2002, Sanchez and defendant reviewed a draft
plea agreement, which the government had offered, the offer to
expire on the following day. It provided for a plea of guilty to
Count One, defendant to be held accountable for importing at least
five kilograms but less than fifteen kilograms of cocaine. It also
reviewed the penalties for the charged crime, the maximum being life
imprisonment and the minimum being ten years. The government would
recommend a sentence of one hundred twenty months and a dismissal
of a second count charging possession with intent to distribute.
The agreement recited that the defendant was satisfied with counsel,
that he was familiar with the rights he was surrendering, that his
agreement was voluntary, and that he had reviewed every part of the
agreement with his attorney and understood it. As a result of this
offer for a plea agreement, defendant submitted a motion for change
of plea on December 6.
On December 12, Attorney Sanchez filed a request to withdraw
as counsel, stating that he had visited defendant several times at
the Metropolitan Detention Center (MDC) in Guaynabo, discussing the
sentence maximum and minimum for the offense charged and the results
of discovery from the government; that on December 4 he had given
defendant his appraisal of the plea agreement offered by the
government, and that, in accordance with defendant's instructions,
he promptly filed a motion to change the plea; that on December 10
Sanchez had once again visited the MDC to "resolve any difference
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between us," but defendant refused to see him; and that on the
following day defendant telephoned Sanchez, asking him to withdraw
from the case since he had failed to get a "better" plea offer. The
motion concluded that "a complete breakdown in communication" had
occurred and requested, in addition to consent to withdraw, an
appropriate inquiry.
Shortly thereafter, on December 16, the court held a change of
plea hearing. It began with Sanchez's pointing out his motion to
withdraw and defendant's unhappiness with the terms of the plea
agreement. The court addressed the defendant, saying that this was
not a sufficient ground for allowing Sanchez to withdraw and adding
that, considering the amount of drugs involved, it could see no
better deal than the mandatory minimum of one hundred twenty months.
In response to the court's query: "Are we going to have the plea or
are we going to trial?" defendant disavowed wanting to go to trial.
Sanchez intervened at this point, urging that it would be a shame
for defendant to make a straight plea in light of the plea
agreement. The court allowed a recess for Sanchez and defendant to
talk.
On resumption of the hearing, defendant told the court he had
had enough time to consult with his attorney, that he wished to
enter a plea of guilty to Count One, and that he was satisfied with
his services. The court then conducted a careful examination of
defendant's appreciation of rights waived under the plea agreement
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and the range of possibilities in sentencing. Appellant repeated
that he was satisfied and that his attorney had rendered effective
legal assistance. The court concluded that he was acting
"voluntarily and with full knowledge of the consequences."
Finally, in January of 2003, defendant filed a pro se motion
to appoint counsel, stating that his family could no longer afford
the fees Sanchez was charging, that on December 30 and 31 he had
tried unsuccessfully to call Sanchez, that Sanchez had "deceived"
him into signing a plea agreement that was not fully explained to
him, and that he had lost all confidence in Sanchez.
The court ordered a response from Sanchez. On February 14,
Sanchez filed his response, which stated that his fee had been fully
paid and that no further fees were being charged; that he had paid
several visits to defendant; that he had requested and received
considerable discovery; that he had filed a motion to suppress a
tape and had participated in a hearing to determine its
acceptability; that plea negotiations had been complicated by three
factors - defendant's role, drug amounts, and another case in which
supervised release might be jeopardized; and that defendant was well
aware of the plea provisions and had not been deceived. Sanchez
added at the end of his response that the breakdown in communication
between him and his client threatened the latter's Sixth Amendment
rights and that new counsel should be appointed.
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On February 26, the court endorsed an order denying the motion
to appoint counsel.
On April 3, 2003, the court held a sentencing hearing.
Defendant was present and had no changes to request in the Pre-
sentence Report. Sanchez urged that special consideration be given
defendant, since he was vulnerable as a deportable alien. The
government argued that there was no basis for downward departure.
The court asked defendant: "[I]s there anything you would like to
state to the court at this time?" The defendant declined the
invitation. The court then recapitulated the steps leading to the
final sentence of one hundred twenty months it felt compelled by the
facts to impose.
Analysis
Appellant poses the issue in stark terms: "Whether the district
court committed error when it failed to determine if a conflict of
interest existed between the appellant and his attorney after
appellant asked his trial attorney to withdraw and requested that
the court appoint new counsel."
Appellant argues in his brief that he had accused counsel of
failing properly to represent him and that counsel was forced to
defend his good name and "attack his own client and savage his
client's credibility." Moreover, he asserts that there had been a
complete breakdown in communication and that this situation
indicated an obvious conflict of interest, which, under Cuyler v.
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Sullivan, 446 U.S. 335, 346 (1980), and other cases, requires an
inquiry to resolve the issue. The district court held no such
inquiry and proceeded to hold the change of plea hearing. This was,
appellant concludes, a per se denial of appellant's Sixth Amendment
rights and requires reversal without any obligation to show
prejudice. Cf. Holloway v. Arkansas, 435 U.S. 475, 488 (1978)
("[W]henever a trial court improperly requires joint representation
over timely objection [to a conflict of interest] reversal is
automatic.").
This proposition, examined closely, is a bold, innovative, and,
finally, untenable claim. That is, the alleged conflict consists
of a court-ordered response by an attorney to a client's conclusory
expressions of dissatisfaction, in which the lawyer detailed his
services to his client and joined in the request to allow withdrawal
and to appoint new counsel. The response does not begin to rise to
the levels of "attack" or "savaging." It was a not uncommon type
of disagreement between client and counsel, exacerbated by a
retrospective regret that a more favorable plea agreement could not
somehow have been made.
Appellant seeks to stretch the concept of "conflict of
interests" to cover the vast terrain of possible conflicting
opinions of client and counsel. The existing body of law subjecting
conflict of interests issues to the most scrupulous attention is
based on the principle that a person cannot faithfully serve two
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masters with conflicting interests. All the case law we are
acquainted with deals with multiple representation situations, with
situations involving two or more clients of a lawyer. See, e.g.,
Wheat v. United States, 486 U.S. 153, 160 (1988); Sullivan, 446 U.S.
at 346; Halloway, 435 U.S. at 483-84. Defendant seeks to support
his claim by citing two First Circuit cases, United States v.
Nelson-Rodriguez, 319 F.3d 12 (2003) and United States v. Hernandez-
Lebron, 23 F.3d 600 (1994), but both cases involved multiple or
joint representation of more than one client by a lawyer.
In Mickens v. Taylor, the Court clarified that Halloway's
automatic reversal rule applies "only where defense counsel is
forced to represent codefendants over his timely objection, unless
the trial court has determined that there is no conflict." 535 U.S.
162, 168 (2002). It also stressed that, in any event, a defendant
must show a defective, though not necessarily an outcome-affecting,
performance by counsel. The Court then referred to courts of
appeals which have applied Sullivan and its obligation to inquire
into a potential conflict of interest "even when representation of
the defendant somehow implicates counsel's personal or financial
interests." Mickens, 535 U.S. at 174. The Court added, "It must
be said, however, that the language of Sullivan itself does not
clearly establish, or indeed even support, such expansive
application." Id. at 175. It noted that the problem giving rise
to the obligation to inquire was "the high probability of prejudice
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arising from multiple concurrent representation, and the difficulty
of proving that prejudice." Id. It added, "Not all attorney
conflicts present comparable difficulties." Id.
Were disagreements between attorney and client to be treated
in the same manner as conflicts arising from multiple representation
of clients - with resulting possible per se reversal without the
necessity of proving prejudice - the nature of appeals in criminal
cases would be dramatically altered. The odds are that many an
unsuccessful defendant would be found nursing some disagreement with
counsel.
We therefore refuse appellant's suggestion to treat this as a
case presenting notice of a potential conflict of interest requiring
a special inquiry and the draconian remedy of reversal without a
showing of prejudice. But we hasten to recognize that differences
between counsel and client can be so deep, pervasive and well-
founded that effective legal assistance has been severely
handicapped. In such a case a court may well be called upon to
grant relief.
In the instant case, there are two actions of the court at
issue: its refusal to allow Sanchez to withdraw and its refusal to
appoint substitute counsel. Were the only issue that of the
appropriateness of the court's refusal to permit withdrawal, Sanchez
having been retained privately, there might be some question. As
we said in United States v. Woodard, 291 F.3d 95, 107 (lst Cir.
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2002), a defendant is not ordinarily dependent on the court's
permission to replace retained counsel. But here the two actions
merge, since defendant and his family ran out of funds to retain
other private counsel and defendant sought court appointed counsel.
In assessing the adequacy of the district court's inquiry under
these circumstances, we acknowledge that "The extent and nature of
the inquiry may vary in each case; it need not amount to a formal
hearing." Id. at 108. The objectives of the inquiry are those set
forth in United States v. Allen, 789 F.2d 90, 92 (lst Cir. 1986),
applicable to denials of motions to substitute counsel:
[T]he appellate court should consider several factors,
including 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.
Cf. United States v. Reyes, 352 F.3d 511, 514 (lst Cir. 2003);
United States v. Genao, 281 F.3d 305, 312 (lst Cir. 2002).
We set aside the timeliness issue as not having been advanced
as a challenge to appellant. In reviewing the record, we see,
first, the initial reason for dissatisfaction, attributed to
defendant by Sanchez, and not denied - that he thought counsel
should have obtained a more favorable plea agreement offer from the
government. But it has not been pointed out to us why the district
court was in error when it confessed that it saw no more favorable
alternative that could have been offered. As we said in Genao, 281
F.3d at 313, "[T]he mere fact that a defense attorney and his client
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disagreed about the advisability of a plea does not justify
appointing new counsel." We cannot say that Sanchez's advice to
enter into this plea bargain was "aberrational." See Allen, 789
F.2d at 92.
We find ourselves in the same situation as that in Allen: "Good
cause for substitution of counsel cannot be determined solely
according to the subjective standard of what the defendant
perceives." 789 F.3d at 23 (internal quotation marks omitted); see
also United States v. Beaver, 524 F.2d 963, 965 (5th Cir. 1975)
(finding "mere subjective lack of confidence" in defense counsel
does not establish insufficiency of counsel within the meaning of
Sixth Amendment).
Defendant also accused Sanchez of deceiving him but advanced
no details except to claim that he was not given adequate
explanation of the agreement. This, however, is belied not only by
the representations of understanding and satisfaction with counsel
contained in the plea agreement, but in the subsequent change of
plea hearing where, after a recess to confer with Sanchez, defendant
twice responded in the affirmative when asked if he was satisfied
with his attorney's services. In a lengthy colloquy with the court,
defendant said that he understood the rights he was waiving, and the
implications of his plea. Finally, at the end of the sentencing
hearing, when the court asked if defendant had anything he would
like to say, defendant remained mute.
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Defendant's final complaint, counsel's unavailability, is
alleged without any particulars except a failed effort to reach
counsel on the last two nights of the year. Countering this, and
not denied by defendant, is the repeated averment of Sanchez that
he paid several visits to MDC Guaynabo, engaged in discovery, sought
and obtained a hearing on the admissibility of a tape recording of
a telephone conversation, and engaged in difficult negotiations.
As for defendant's assertion that there was a complete
breakdown in communication, this was belied at the change of plea
hearing on December 16 when Sanchez intervened at a critical point
when it appeared that the court considered the plea agreement
rejected. He obtained a recess to allow him to confer with his
client. Subsequently the defendant once again professed himself
satisfied. The plea agreement continued to be the basis of the
court's further inquiry. This indicates to us that there still
remained the elements of effective communication, continuing
vigilance and concern on the part of counsel and trust on the part
of the client. As we said in United States v. Myers, 294 F.3d 203,
208 (lst Cir. 2002), a defendant "must show that the conflict
between lawyer and client was so profound as to cause a total
breakdown in communication," preventing an adequate defense.
Moreover, to the extent that there was a breakdown, it was the doing
of defendant himself, and, as we said in Reyes, 352 F.3d at 516,
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"[A] defendant cannot compel a change to [sic] counsel by the device
of refusing to talk with his lawyer."
Finally, when we consider the ultimate question whether the
disagreements between lawyer and client were likely to preclude
effective assistance in the defense, we have in mind that the work
of a lawyer for defendant was practically at an end. Sanchez had
made a vigorous plea for helping defendant avoid deportation
problems as a result of the sentence in the instant case. Beyond
this, there lay presumably only the work of providing services on
appeal - something beyond the scope of the request for substitute
counsel.
In short, we think the district court gave adequate attention
to the issues raised by defendant, and made appropriate inquiry into
the causes and merits of the complaints. We hold that it was well
within its discretion in refusing to appoint new counsel.
AFFIRMED.
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