United States Court of Appeals
For the First Circuit
No. 05-1735
UNITED STATES OF AMERICA,
Appellee,
v.
THOMAS GAFFNEY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Lynch, Circuit Judge,
Siler,* Senior Circuit Judge
and Lipez, Circuit Judges.
Tamara A. Barney, with whom MacFadyen, Gescheidt & O'Brien was
on brief, for appellant.
Donald Lockhart, with whom Robert Clark Corrente, United
States Attorney, and Stephen G. Dambruch, Assistant United States
Attorney, were on brief, for appellee.
December 1, 2006
* Of the Sixth Circuit, sitting by designation.
LIPEZ, Circuit Judge. Appellant Thomas Gaffney was
sentenced to a term of imprisonment of 200 months after pleading
guilty to three counts stemming from a conspiracy to distribute,
and the distribution of, cocaine base. He now claims that his
conviction and sentence should be vacated because the district
court wrongly denied him the opportunity to obtain new counsel
before entering his plea. Although appellant characterizes the
court's action as either the denial of the counsel of his choice or
the denial of a request for substitute counsel in violation of the
Sixth Amendment, we view the court's action as a denial of a
request for a continuance of a change of plea hearing, sought by
defendant to explore the possibility of hiring a new attorney.
Thus viewed, we conclude that the denial of that continuance
request was not an abuse of discretion. We therefore affirm.
I.
Appellant Gaffney and a co-defendant, James D. Barr, were
charged by complaint in October 2004 with conspiring to distribute
and the distribution of crack cocaine. After court-appointed
attorneys handled the initial appearance and detention hearings,
Gaffney and Barr hired private counsel. A grand jury returned a
three-count indictment against Gaffney in November 2004, and the
government filed an information alleging that he had a prior felony
drug conviction which would trigger a mandatory minimum ten year
sentence. On December 17, 2004, Gaffney and his attorney, Thomas
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Connors, signed a written plea agreement in which Gaffney agreed to
plead guilty on all three counts. Barr signed a similar agreement.
At a joint plea hearing on December 27, 2004, Edward J.
McEnaney, an associate of Connors, represented Gaffney. Counsel
for both defendants expressed their clients' concern about going
forward with their guilty pleas because they feared that their
prior convictions might dramatically increase their sentences under
the career offender provision of the sentencing guidelines.1
Noting that this issue "has a serious impact on the potential
penalties involved in this case," the court granted a two-day
continuance to allow the defendants additional time to get a
"clearer picture of what it looks like for you in the event you
decide to plead guilty." The court also arranged a meeting between
counsel and the probation officer for the next day. The court
repeatedly warned defendants that "evaluations done by the
Government are only estimates"; that they are "not binding"; and
that the court itself would determine the prior convictions'
effects under the guidelines. The court asked both defendants if
they understood these warnings and they replied that they did.
1
Gaffney faced a mandatory minimum ten year sentence based on
the charges contained in the criminal complaint filed against him
on October 8, 2004. However, if his previous convictions caused
him to be classified as a career offender under the sentencing
guidelines, he would be subject to a minimum guidelines sentence of
262 months.
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When the hearing resumed two days later, the court noted
that both Gaffney and Barr had informed the court prior to the
hearing that they were dissatisfied with their counsel and asked
counsel for an update. McEnaney, again serving as counsel for
Gaffney, responded that his client "had a problem" with the
mandatory minimum sentence that would result from his likely
classification as a career offender. Counsel continued: "he is
interested in hiring another counsel. He does not believe that
I've done everything, nor Mr. Connors . . . that we've done
everything on his behalf to help him." Counsel concluded that we
"have no alternative but to ask on his behalf for an extension of
time . . . so he may meet with another counsel and someone who he
may have more confidence in."
The court then asked to hear directly from the defendants
about what "they think [counsel] have not done for them, because it
strikes me that this is nothing more than a play for additional
time . . . ." Gaffney responded: "Well, your Honor, first of all,
my lawyer, the one that was paid to represent me ain't even here.
He's on vacation." Gaffney continued: "I don't got nothing on my
case. I don't got one piece of paper." Gaffney then contended
that, without this paperwork, he had been unable to look up cases
like his in the law library. The court questioned Gaffney
extensively regarding his complaint about the missing paperwork,
taking particular care to ascertain that Gaffney was familiar with
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both the indictment and the plea agreement. Gaffney acknowledged
that his lawyers had read both to him.
After some consideration, the court declined to grant a
continuance of the change of plea hearing to allow Barr and Gaffney
to obtain alternative counsel. Having heard now from both counsel
and defendants, the court reiterated its opinion that the
defendants were "asserting dissatisfaction with [their] attorneys
in order to try to get some more time." The court also found that
defendants' "dissatisfaction here is not with your attorneys. It's
with what your attorneys are telling you." The court added: "I
haven't heard anything that indicates to me that they're not
representing you effectively." He also commended counsel for
"their effort to get you more time in order to further investigate
[the effect of the prior convictions on sentencing]." He noted
that "you don't usually get that extra time, but I gave it to you
so you . . . could be as informed as possible . . . [b]ut now
you've been informed of that. You understand what you're facing
here." The court then offered the men three choices: plead guilty,
plead not guilty and proceed to trial with present counsel, or
represent themselves. The court also offered counsel an
opportunity to move to withdraw; neither counsel did. Gaffney then
pled guilty on all counts.
During the plea colloquy, Gaffney confirmed that his
lawyers had read the indictment and plea agreement to him. The
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court asked Gaffney: "Putting all the issues of time aside, do you
have any reason to feel that you haven't gotten good advice and
good counsel from your attorneys here?" Gaffney responded: "no."
The court accepted Gaffney's guilty plea.
Subsequently, the court conducted three separate
sentencing hearings to resolve Gaffney's challenges to the
calculations proposed by the government. Gaffney was represented
by Connors at each of these hearings. The court ultimately imposed
a term of imprisonment of 200 months. Although he was classified
as a career offender based on his prior convictions, Gaffney
received a three-level reduction for acceptance of responsibility
and his ultimate sentence was more than five years less than the
minimum guidelines term.
On appeal, Gaffney argues that the district court
violated his Sixth Amendment right to counsel by denying a request
for counsel of his choice or by denying a motion for substitution
of counsel. In response, the government asserts that Gaffney's
decision to plead guilty following his colloquy with the trial
court waived any claim for the deprivation of constitutional rights
that occurred before the plea. See Tollett v. Henderson, 411 U.S.
258, 267 (1973). Alternatively, the government argues that Gaffney
never asked for substitution of counsel or counsel of his choice,
but instead sought a continuance of the change of plea hearing to
explore the possibility of hiring another attorney. The government
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insists that the court did not abuse its discretion in denying that
request.
II.
A. Waiver
In Tollett, the Supreme Court held that a defendant who
pleads guilty unconditionally waives all "independent claims
relating to the deprivation of constitutional rights that occurred
prior to the entry of the guilty plea." 411 U.S. at 267; United
States v. Cordero, 42 F.3d 697, 699 (1st Cir. 1994). The
government contends that Tollett is applicable here and urges us to
deny Gaffney's appeal on that basis. We decline to do so.2
2
This court has "assiduously followed the letter and spirit of
Tollett, holding with monotonous regularity that an unconditional
guilty plea effectuates a waiver of any and all independent non-
jurisdictional lapses that may have marred the case's progress up
to that point . . .." Cordero, 42 F.3d at 699. Although not all of
these cases expressly apply the Tollett holding, we have ruled that
a guilty plea waives an appeal based on: claims of insufficient
evidence of an interstate commerce nexus, United States v. Cruz-
Rivera, 357 F.3d 10, 14 (1st Cir. 2004); a Rule 16 discovery
violation claim, United States v. Rodriguez-Castillo, 350 F.3d 1,
3-4 (1st Cir. 2003); a Kastigar claim based on the Fifth Amendment,
United States v. Lujan, 324 F.3d 27, 30 (1st Cir. 2003); a claim
based on a so-called "jurisdictional" element of a criminal
statute, United States v. Gonzalez, 311 F.3d 440, 442-44 (1st Cir.
2002); a suppression claim based on a federal statute, United
States v. Valdez-Santana, 279 F.3d 143, 145-46 (1st Cir. 2002); a
Speedy Trial Act claim, United States v. Gonzales-Arimont, 268 F.3d
8, 11-13 (1st Cir. 2001); an extradition claim, United States v.
Torres-Gonzales, 240 F.3d 14, 16 (1st Cir. 2001); a constitutional
challenge to a criminal statute, United States v. Martinez-
Martinez, 69 F.3d 1215, 1224 (1st Cir. 1995); a Fourth Amendment
suppression claim, Cordero, 42 F.3d at 699; a statute of
limitations claim, Acevedo-Ramos v. United States, 961 F.2d 305,
307-09 (1st Cir. 1992); and a challenge to the voluntariness of a
confession, United States v. Wright, 873 F.2d 437, 442 (1st Cir.
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The Court reasoned in Tollett that a guilty plea
"represents a break in the chain of events which has preceded it in
the criminal process," 411 U.S. at 267, and reflects a defendant's
decision to leave behind claims of constitutional error in an
effort to expeditiously resolve the criminal proceedings against
him. Here, defendant expressed dissatisfaction with his attorney
at the change of plea hearing itself and then entered his guilty
plea immediately after the court denied his request for time to
explore the possibility of retaining different counsel. Arguably,
the plea was intertwined with the alleged constitutional violation
in a fashion that differs from many of the precedents applying
Tollett. However, we find it unnecessary to decide whether
Gaffney's complaint is indeed an "independent claim" waived by
Tollett, or whether it is so intertwined with the plea itself that
it evades Tollett's strictures. Instead, we conclude that
Gaffney's claim for relief under the Sixth Amendment is otherwise
deficient.
B. Identifying the Nature of the Motion
In analyzing Gaffney's claim for relief, we must first
determine the nature of Gaffney's motion at the December 29 plea
hearing. While the government argues that Gaffney simply sought a
continuance of the change of plea hearing, he says that the court
either denied his motion for substitution of counsel or denied him
1989).
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his "choice of counsel" within the meaning of United States v.
Gonzalez-Lopez, 126 S. Ct. 2557 (2006).3 After reviewing the
transcript of the change of plea hearing, we conclude that
appellant was requesting neither substitution of counsel nor
insisting on his choice of counsel within the meaning of Gonzalez-
Lopez. Instead, we agree with the government that Gaffney wanted
more time to consider securing alternative counsel.
Gonzalez-Lopez states that the "Sixth Amendment provides
that in all criminal prosecutions, the accused shall enjoy the
right . . . to have the Assistance of Counsel for his defence."
Id. at 2561 (quoting U.S. Const. amend. VI) (internal quotation
marks and alteration omitted). It then emphasizes that "an element
of this right is the right of a defendant who does not require
appointed counsel to choose who will represent him," and specifies
further that "a defendant should be afforded a fair opportunity to
secure counsel of his own choice." Id. (internal quotation marks
omitted) (quoting Powell v. Alabama, 287 U.S. 45, 53 (1932)).
3
In Gonzalez-Lopez, defendant had retained private counsel who
was present and prepared to try the case; however, the trial court
erroneously denied counsel admission pro hac vice. Instead,
defendant was represented by local counsel, also privately
retained. On appeal, the Eighth Circuit reversed defendant's
conviction and rejected the government's argument that violation of
defendant's Sixth Amendment right was subject to harmless error
review. The Supreme Court affirmed, stating that "the Sixth
Amendment right to counsel of choice . . . commands, not that a
trial be fair, but that a particular guarantee of fairness be
provided--to wit, that the accused be defended by the counsel he
believes to be best." 126 S. Ct. at 2562.
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However, the facts of this case differ significantly from those in
Gonzalez-Lopez, where defendant's privately retained counsel was
present in the courthouse and ready to try the case but was
erroneously prevented by the trial court from doing so. There was
no comparable denial here of Gaffney's choice of privately retained
counsel.
In addressing Gaffney's companion claim that the court
violated his Sixth Amendment right by denying his motion for
substitution of counsel, we must set forth some additional
principles of Sixth Amendment law. Although "representation by
counsel is a right of the highest order," United States v. Proctor,
166 F.3d 396, 402 (1st Cir. 1999), the right to choose one's own
counsel is not absolute. It is well established 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." Wheat v. United States, 486 U.S. 153, 159 (1988). In
particular, the right to choose one's counsel must be balanced
against "the fair, efficient and orderly administration of justice
. . . [and] cannot be manipulated to delay proceedings or hamper
the prosecution." United States v. Panzardi-Alvarez, 816 F.2d 813,
816 (1st Cir. 1987). Indeed, "only an unreasoning and arbitrary
insistence upon expeditiousness in the face of a justifiable
request for delay violates the right to the assistance of counsel."
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Morris v. Slappy, 461 U.S. 1, 11-12 (1983)(internal quotation marks
omitted).
Turning to the specifics of Gaffney's substitution of
counsel claim, we first note that his claim differs from the usual
substitution of counsel claim in which a defendant with court
appointed counsel seeks the court's substitution of another
appointed attorney. Gaffney retained his attorney privately. He
was not even asking the court to substitute a court appointed
attorney for his privately retained counsel. Instead, Gaffney was
asking for more time to explore the possibility of finding another
privately retained attorney to replace his current one. At most,
this request was preliminary to a formal request for substitution
of counsel which would involve several steps. In conjunction with
filing a motion for substitution of counsel, Gaffney would have to
fire his present attorney, hire a new one, and cause his former
attorney to move to withdraw. None of these steps were taken here.
According to Rule 1.17 of the Rhode Island Disciplinary Rules of
Professional Conduct, which applied to Gaffney's attorney, an
attorney is required to withdraw if discharged by his client.4
The record indicates that Gaffney's attorney never filed
a motion to withdraw. It is equally clear from the record that
4
The motion to withdraw is linked to a motion for
substitution of counsel. It implicates both the lawyer's ethical
duty to respect a client's autonomy and the court's responsibility
for maintaining expeditious proceedings.
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Gaffney had not retained a substitute attorney. Without these
indicia of a motion to substitute one privately retained counsel
for another, the court had no basis for treating Gaffney's request
for a delay in the change of plea hearing as a motion for
substitution of counsel.
In addition, the only explicit request made by either
appellant or his counsel was for "an extension of time if the Court
sees fit so [Gaffney] may meet with another counsel." His attorney
added that Gaffney "should be afforded the right to at least meet
with somebody else and be advised by another attorney."
Understanding from Gaffney's actions and these statements that
Gaffney and his counsel were requesting a continuance of the change
of plea hearing, the court replied in kind, stating that it had not
heard "anything that convinces me that I should grant a motion to
withdraw and grant you a continuance to obtain new counsel."
We conclude that the court fairly viewed the request of
Gaffney and his attorney as a request to continue the change of
plea hearing so that Gaffney could explore the possibility of
hiring another attorney. However, this characterization of
Gaffney's request as one for a continuance does not mean that such
a request could not have constitutional implications under the
Sixth Amendment. As noted in Powell, the Sixth Amendment right to
counsel requires that "a defendant should be afforded a fair
opportunity to secure counsel of his own choice." 287 U.S. at 53.
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In essence, Gaffney argues that the denial of his continuance
request meant that he did not have a fair opportunity to secure
counsel of his own choice. As we will explain, there is no basis
for that claim.
C. Denial of the Motion for Continuance
We evaluate the trial court's denial of Gaffney's motion
for a continuance for abuse of discretion. See United States v.
Allen, 789 F.2d 90, 92 (1st Cir. 1986). Here, the court
extensively investigated Gaffney's concerns, questioning Gaffney's
attorney, inviting Gaffney to speak for himself, and granting
Gaffney a second opportunity to address the court after the court
declared its preliminary findings. We describe the particulars.
The district court first questioned Gaffney's counsel.
McEnaney indicated that Gaffney felt his counsel had not done
"everything on his behalf to help him"; Gaffney "had a problem with
the ten-years sentence" and was concerned with the effect of his
prior convictions on sentencing. Having found nothing of
sufficient particularity in this response, the court turned
directly to Gaffney.
Gaffney first expressed frustration at Connors' absence
from the plea hearing. Having ascertained from McEnaney that
Connors was, in fact, ready to try the case, the court assured
Gaffney that his lawyers were prepared to go to trial and explained
that McEnaney's substitution for Connors "doesn't mean that Mr.
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Connors is not prepared to try this case. Lawyers help each other
out in this way all the time. It's not a reason to fire your
lawyer and hire somebody new and delay the trial date."
Gaffney also complained that he had no paperwork on his
case. The court probed this complaint in a lengthy colloquy:
THE COURT: So you think that your lawyer
should have brought you some papers or
something?
MR. GAFFNEY: Papers on my case. I don't got nothing on
my case saying – I don't even got what I'm
charged with. I don't even got that where
I'm at. Everytime he comes out he brings
his paperwork. He says, 'I'm going to
bring yours next time. They never faxed
it to me. . . .'
THE COURT: Okay. All right. You've had a chance to
review the indictment against you, right?
The written charge against you? You've
seen that, haven't you?
MR. GAFFNEY: Yeah, they read it to me in court . . .
THE COURT: Okay. And the plea agreement, you signed
the plea agreement?
MR. GAFFNEY: Yeah, he read –- he didn't even read that.
They read that to us. He said 'You could
trust me.'
THE COURT: Excuse me? I didn't understand that.
MR GAFFNEY: When they came up with the plea agreement,
we didn't read it. They read it to us.
And he said, 'You could trust me.' I'm
thinking he's telling me, yeah, you signed
up for ten years. Then we come to court,
now it's 20.
After hearing from the government's attorney, the court
concluded: "I haven't heard anything that convinces me that I
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should grant a motion to withdraw5 and grant you a continuance to
obtain new counsel. Because the information is going to be exactly
the same with the new lawyer." The court then granted Gaffney's
request to address the court a second time. Gaffney again
complained of Connors' absence and his lack of paperwork, lamenting
that he "could have went to the law library, looked up similar
cases to mine. . . . I didn't get a chance to do that. My lawyer
didn't do that for me." The court responded that looking up
similar cases "might make you feel a little better, but it isn't
going to make the difference." Gaffney then complained that he had
"only been locked up for two months, and I'm already going to
trial. . . . I feel like you are rushing me into . . . signing my
life away." Indeed, Gaffney repeatedly made clear his unhappiness
with the pace of events. Allowed to address the court again, he
said: "Your honor, I feel like you are . . . forcing me into . . .
going to trial. I don't want to go to trial. I just don't want my
lawyer." When the court invited counsel to state "any reason why
this matter should not go to trial next week," Gaffney intruded
with another insistence that "I don't want to go to trial." The
court's lengthy and thorough inquiry of Gaffney got to the bottom
of his unhappiness with his attorney. The problem was not his
attorney. Instead, Gaffney did not like the unpleasant message
5
As noted, no motion to withdraw was ever filed.
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about his sentencing exposure, and he did not like the rapid
movement toward trial.
Moreover, the record indicates that Gaffney was
communicating with his lawyers before he signed the plea agreement,
before the December 27 hearing, and during the two days before the
December 29 hearing. In addition, the absence of any motion to
withdraw by Gaffney's counsel and subsequent events also belie any
failure of communication between Gaffney and his counsel.
The court twice mentioned that counsel had not filed a
motion to withdraw, indicating that "if counsel files such a
motion, I'll hear it," and noting that "these lawyers are
professionals." The court added: "if either of them felt . . .
they were not ready to go to trial, they would – they have an
ethical duty to tell me that, and I'll deal with it. But I don't
have any reason to believe that." From counsel's perspective and
from the court's, there apparently was no communication problem
between attorney and client precluding continued representation and
thus no justification for granting a continuance.
III.
In arguing that the district court abridged his Sixth
Amendment right to counsel, defendant tried to characterize his
motion to continue the change of plea hearing as either a motion to
exercise his choice of counsel or as a motion for substitution of
counsel. For the reasons stated, we have concluded that those
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characterizations are inaccurate. Instead, Gaffney simply sought
a continuance of his change of plea hearing to explore the
possibility of hiring new counsel. Although such a request for a
continuance to seek substitute counsel could implicate the Sixth
Amendment, Gaffney's claim has no such constitutional dimension.
Gaffney chose Connors as his counsel from the outset. He
communicated with both Connors and McEnaney throughout the period
leading to his plea hearing, and he was advised of the nature of
the charges against him and the substance of the plea agreement
that he signed. Based on its extensive investigation into
Gaffney's dissatisfaction with counsel and Gaffney's steadfast
insistence that he wanted to avoid a trial and plead guilty, the
district court reasonably determined that Gaffney's unhappiness
related almost entirely to the pace of events and to the hard
message that counsel was delivering rather than to any aspect of
counsel's performance. The court also reasonably determined that
this message would not change if Gaffney secured new counsel.
Gaffney's attorney never filed a motion to withdraw, and no
alternative counsel prepared to take over the case was ever
identified.
In these circumstances, the court properly denied the
request for a continuance. Accordingly, we affirm the judgment of
the district court. So ordered.
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