United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2769
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Ronald Eugene Jones, *
*
Appellant. *
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Submitted: September 19, 2011
Filed: December 5, 2011
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Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Ronald E. Jones was convicted of conspiracy to distribute and possess with
intent to distribute heroin, in violation of 21 U.S.C. § 841(b)(1)(A), and possession
of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. §
924(c)(1)(A). Jones appeals his conviction, arguing that the district court1 violated
both his Sixth Amendment right to counsel of his choice and his constitutional right
to be present at critical stages of trial. We affirm.
1
The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.
I.
In January 2007, the Drug Enforcement Agency (DEA) began investigating the
activities of a drug trafficking organization that was moving kilogram quantities of
heroin from San Diego, California, to St. Louis, Missouri. The DEA investigation
revealed that Jones was receiving heroin from a supplier in San Diego and then
reducing the drug into smaller quantities for distribution in St. Louis.
After intercepting telephone conversations between Jones and his heroin
supplier through a wiretap on the supplier’s phone, the DEA obtained a court-
authorized wiretap for Jones’s phone. The DEA used these wiretaps to intercept
phone calls between Jones and the heroin supplier in which Jones arranged to send
a courier to San Diego to pick up heroin. On June 1, 2008, Jones was arrested
pursuant to a criminal complaint. Two days later, detectives of the St. Louis
Metropolitan Police Department learned that one of Jones’s co-conspirators was a
convicted felon in possession of a firearm. The police arrested the co-conspirator and
seized the firearm. After his arrest, the co-conspirator told the detectives that Jones
gave him the firearm in question.
Shortly after his arrest, Jones retained the law firm of Rosenblum, Schwartz,
Rogers & Glass, P.C. During the course of the representation, attorneys N. Scott
Rosenblum, John P. Rogers, and Gilbert C. Sison appeared on Jones’s behalf. On
June 26, 2008, Jones was charged with conspiracy to distribute heroin and criminal
forfeiture of the property Jones derived from drug sales. On October 8, 2008, Jones
filed a motion to suppress the contents of any electronic surveillance. On March 6,
2009, the magistrate judge issued a report recommending that Jones’s suppression
motion be denied. After receiving two extensions of time from the district court,
Jones filed an objection to the report and recommendation. The district court adopted
the report and recommendation on April 30, 2009.
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Trial for Jones and a co-defendant was initially scheduled for April 21, 2009.
On three separate occasions–March 21, June 22, and August 26–Jones moved to
continue his trial without any objection from the Government. Jones also waived his
right to a speedy trial on two occasions during this time period. The district court
granted all three of Jones’s motions to continue and ultimately rescheduled trial for
October 26, 2009. On September 10, 2009, a grand jury returned a superseding
indictment against Jones and his co-conspirators, adding a weapons-possession
charge against Jones based on the firearm seized from Jones’s co-conspirator.
In an ex parte hearing before the magistrate judge a week before trial, Jones
made an oral pro se motion to continue trial and substitute counsel. Jones asserted
a conflict with his defense attorneys, claiming that they refused to file a motion to
suppress the weapon identified in the superseding indictment. Jones also claimed that
his attorneys would not acquiesce to Jones’s request for a second motion to exclude
the wiretap recordings. Finally, Jones expressed his belief that Rogers, who was
designated by the firm to try the case, was not prepared for trial because he had failed
to interview certain witnesses. Jones argued that a fourth continuance was necessary
for Rogers to fully prepare or for Jones to retain new counsel.
In response, Rogers stated that he had explained to Jones that there was almost
certainly a lack of standing to challenge the search that produced the weapon, and that
Jones’s best defense strategy would be to force the Government to prove that Jones
actually possessed the weapon. Rogers also explained to Jones that filing a motion
to suppress would require Jones to assert a possessory interest in the weapon, which
Rogers believed would be detrimental to Jones’s defense. Rogers then stated that he
could not, in good faith, file a second motion to exclude electronic surveillance after
the wiretap tapes were found legally admissible by the magistrate judge. As to
Jones’s claims of unpreparedness, Rogers stated on the record that he was “in trial
mode,” that he had conducted most of the necessary witness interviews, and that the
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specific witness Jones wanted Rogers to interview had been recently located and was
to be interviewed that very day.
On October 21, 2009, the magistrate judge issued an order denying Jones’s pro
se motion for a continuance. Two days later, Rosenblum moved, under seal, to
continue the trial so Jones could retain new counsel. Rosenblum noted that Jones was
“uncomfortable with his retained counsel representing him at a trial in this matter.”
Rosenblum also admitted that the relationship between Jones and his attorneys was
“irretrievably damaged” due to Jones’s lack of confidence in Rosenblum and Rogers.
However, Rosenblum strongly denied that Jones had any legitimate basis for his
mistrust. The district court denied the motion that same day.
On the morning of trial, Jones appeared with Rogers and renewed his pro se
motion to continue the trial and substitute counsel. His proposed substitution, Chet
Pleban, was present at the hearing. In a hearing and an ex parte sidebar, Jones was
given an opportunity by the court to explain his request. Jones claimed that Rogers
hardly spoke with him other than to advise him to plead guilty, despite his wish to go
to trial. Jones also claimed that Sison and Rogers did not provide him with an
evidentiary hearing transcript he requested. He then restated his belief that Rogers
was unprepared to go to trial and advocate zealously on his behalf.
In response, Rogers again characterized the dispute as one based primarily on
defense counsel’s trial strategy. Rogers acknowledged that the relationship was
strained, but explained that it “wasn’t in any way related to the efforts of the law
firm,” but rather Jones’s “genuine desire not to communicate with his lawyers” after
repeated explanations of how the attorneys were handling the case. The district court
agreed that Jones’s claims were “not credible,” and concluded that there was no basis
to relieve Rogers and his firm from the case. The court found that Rogers was well-
prepared and agreed that the conflict was over trial strategy, noting that “there’s no
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requirement that a client has to like the ideas and concepts of his lawyer.” Trial for
Jones and his co-defendant began as scheduled.
After a seven-day trial, the jury began deliberations. After sending several
questions via notes to the district court, the jury asked to hear the wiretapped
conversations between Jones and the heroin supplier and between the heroin supplier
and one of the DEA’s confidential informants. The court read this request aloud to
the courtroom, which included Jones, Rogers, and the Government. Because the
audio playback equipment was in the courtroom, the district court proposed that all
parties exit the courtroom and allow the jury to listen to the tapes there. Rogers stated
that he was willing to be absent from the playback, but asked for additional
assurances that the correct conversations would be replayed. To make sure only the
requested conversations would be played in the correct order, the district court
arranged for Special Agent David Nelson, who had played the tapes during trial, to
play them again. As an additional precaution, the district court asked the court
security officer to oversee the playback and prevent any extraneous interaction
between Agent Nelson and the jury. The Government, after consulting Rogers,
created a list of the specific conversations to be played, which the court read aloud
to the parties. The courtroom was cleared and the tapes were played for the jury.
After several hours of deliberations, the jury found Jones guilty on both counts
of the superseding indictment. The district court sentenced Jones to 235 months
imprisonment on Count 1, and 60 months imprisonment on Count 2, to be served
consecutively, followed by a 5 year period of supervised release.
II.
On appeal, Jones argues that the district court violated his Sixth Amendment
rights by (1) denying Jones’s motion to continue trial and substitute counsel and (2)
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failing to perform an adequate inquiry into Jones’s claims of an irreconcilable conflict
in the attorney-client relationship. We address each argument in turn.
A.
Jones argues that the district court erred in denying his motion to continue in
order to substitute counsel in violation of his Sixth Amendment right to counsel of
his choice. “We review the denial of a request for a continuance in order to substitute
counsel for an abuse of discretion.” United States v. Cordy, 560 F.3d 808, 815 (8th
Cir. 2009).
“[T]he Sixth Amendment guarantees a defendant the right to be represented by
an otherwise qualified attorney whom that defendant can afford to hire, or who is
willing to represent that defendant even though he is without funds.” United States
v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006) (quotation omitted). However, “[t]he
right to choice of counsel is not absolute, and is ‘circumscribed in several important
respects.’” United States v. Whitehead, 487 F.3d 1068, 1071 (8th Cir. 2007) (quoting
Gonzalez-Lopez, 548 U.S. at 144). Specifically, the defendant’s “right to choice of
counsel must not obstruct orderly judicial procedure or deprive courts of their
inherent power to control the administration of justice.” United States v. Vallery, 108
F.3d 155, 157 (8th Cir. 1997).
Accordingly, “trial courts are vested with broad discretion in matters of
continuances for the purpose of substituting counsel.” Cordy, 560 F.3d at 815
(quotation omitted). “In exercising its discretion, the district court must carefully
balance the defendant’s right to be represented by the counsel of his choice against
the court’s interest in the orderly administration of justice.” Id. (quotations omitted).
“Last-minute requests to substitute counsel . . . remain disfavored,” United States v.
Rodriguez, 612 F.3d 1049, 1054 (8th Cir. 2010), and “a trial court’s discretion is at
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its zenith . . . when the defendant endeavors to replace counsel shortly before trial.”
Cordy, 560 F.3d at 817 (quotation omitted).
We have identified factors a district court should weigh when determining
whether to grant a continuance. These factors include:
(1) the nature of the case and whether the parties have been allowed
adequate timing for trial preparation;
(2) the diligence of the party requesting the continuance;
(3) the conduct of the opposing party and whether a lack of cooperation
has contributed to the need for a continuance;
(4) the effect of the continuance and whether a delay will seriously
disadvantage either party; and
(5) the asserted need for the continuance, with weight to be given to
sudden exigencies and unforeseen circumstances.
Cordy, 560 F.3d at 815-16 (quotation omitted).
Although Jones’s case involved multiple defendants and a superseding
indictment, Rogers had adequate time to prepare for trial. From the time Jones
retained Rosenblum, Schwartz, Rogers & Glass, P.C. in early June 2008 to his trial
in late October 2009, Rogers and his firm had over sixteen months to prepare. During
that time, Jones sought and received continuances on three separate occasions.
Rogers told the magistrate judge he was “in trial mode,” which indicated that the firm
was prepared to try the case. And though a new firearm possession charge was
brought against Jones in the superseding indictment of September 10, 2009, less than
two months before trial, this charge was based on evidence Jones and his attorneys
knew about well in advance. Indeed, the indictment of June 26, 2008 alluded to the
elements of the firearm charge, alleging that Jones had provided a co-conspirator with
a handgun in furtherance of the drug trafficking conspiracy. Therefore, the district
court did not abuse its discretion in finding that there was adequate time for defense
counsel to prepare.
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Three of the remaining Cordy factors also weigh against Jones. There is
nothing to suggest that the Government contributed to the perceived need for a
continuance. As for the effect of the continuance, the attorney for the co-defendant
had no objection to it. However, the district court determined that should the
continuance be granted, little would change in the form and quality of representation
Jones would receive. It was also uncertain when Pleban, the defense attorney
suggested by Jones as a replacement for Rogers, would be ready to try the case were
he to be retained; as the district court observed, it could take a new attorney anywhere
from one week to six months “to get together and review everything he needs to
review.” Finally, as discussed below in greater detail, the district court investigated
Jones’s asserted need for the continuance and found it baseless. Under these
circumstances, the district court could have easily concluded that Jones’s request was
little more than a delay tactic.
As to Jones’s diligence in requesting the continuance, it is unclear from the
record whether Jones was sufficiently prompt in bringing the matter before the court.
After all, one of Jones’s alleged grievances in support of the motion was Rogers’s
failure to file a second suppression motion after his first suppression motion was
denied on April 30, 2009, over five months before trial. However, Jones’s
dissatisfaction was not limited to the suppression motion and Rosenblum described
the deterioration of the attorney-client relationship as occurring “over the course of
the past couple of weeks leading up to trial.” Nevertheless, the other factors
substantially outweigh this one factor, and we cannot find any abuse of discretion in
denying Jones’s motion to continue in order to substitute counsel.2
2
At oral argument, Jones asserted that the district court should have treated the
motion to continue in order to substitute counsel as two distinct motions. Jones
argued that this approach should have led the district court to deny the motion to
continue based on the Cordy factors if it deemed continuance inappropriate, but
should have then inquired as to whether the proposed substitute counsel was prepared
to try Jones’s case that day. However, the pretrial transcript reveals that both Jones
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B.
Jones also argues that the district court violated his Sixth Amendment right to
counsel by failing to make a sufficient inquiry into his claims regarding the
breakdown of the attorney-client relationship. “[T]he Sixth Amendment right to
counsel contains a correlative right to representation that is unimpaired by conflicts
of interest or divided loyalties.” Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir.
1991). This right is not violated by general dissatisfaction or disagreements over
strategy because there is no “right to an attorney who will docilely do as she is told
or advance meritless legal theories.” Rodriguez, 612 F.3d at 1055 (quotation
omitted). Nevertheless, “‘[w]hen a defendant raises a seemingly substantial
complaint about counsel, the judge has an obligation to inquire thoroughly’ into the
alleged problem.” Id. at 1053 (quoting Lockhart, 923 F.2d at 1320). However, “the
nature of the factual inquiry into potential conflicts is case-specific,” and a thorough
inquiry may not necessitate a separate hearing on the matter. Id. at 1054 (noting that
“in some instances, the court would have the relevant facts without engaging in an
intensive inquiry”).
Jones relies primarily on Atley v. Ault, 191 F.3d 865 (8th Cir. 1999) to argue
that the district court should have engaged in a more in-depth investigation of his
conflict of interest claim. In Atley, a case before us on habeas review, the defendant’s
and Rogers presented the motion to substitute counsel as contingent on the court
granting the motion to continue. Rogers explained that Pleban “voiced his intention
to enter his appearance on behalf of Mr. Jones, if the case were to be continued,” and
it appears that Jones admitted that his new attorney “can’t come in today and start the
trial” because he was unfamiliar with the details of the case. (Transcript of Jury Trial:
Pretrial and Voir Dire Proceedings at 5, 28.) Under these circumstances, the district
court acted appropriately in treating Jones’s request as a single motion to continue in
order to substitute counsel.
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attorney had accepted a job with the prosecutor’s office a few days before trial. Id.
at 867. Rather than ascertain whether this potential conflict would prevent defense
counsel from zealously representing his client, the state court “assumed answers to
questions that were never asked” and merely “opined that each side would perform
its roles appropriately.” Id. at 872. We held that the state court conducted an
inadequate inquiry into such a serious potential conflict of interest. Id. at 872.
However, we believe this case is more like United States v. Rodriguez. Similar
to Jones, the defendant in Rodriguez requested new counsel on the eve of trial and
complained of his “counsel’s failure to sufficiently consult and communicate with
him about the case, secure witnesses on his behalf, . . . or generally prepare for trial.”
Rodriguez, 612 F.3d at 1051. In Rodriguez, the district court investigated these
complaints by questioning both the defendant and defense counsel and determined
that the defendant had failed to establish a total breakdown in communication or an
irreconcilable conflict. Id. at 1055. Because the court allowed the defendant “ample
opportunity to explain his concerns regarding counsel’s representation,” we held that
the court satisfied its duty to inquire and did not abuse its discretion when it
ultimately denied substitution of counsel. Id. at 1054.
Here, both the magistrate judge and the district court investigated Jones’s
claim. The report and recommendation by the magistrate judge reveals an inquiry
into Jones’s allegations that gave Jones “ample opportunity to explain his concerns.”
The magistrate judge then asked defense counsel about Jones’s claims and determined
that they were without merit. The pretrial transcript of the district court’s
examination of Jones and Rogers further supports the conclusion that the court made
an appropriate inquiry. Jones had multiple opportunities to fully explain his
arguments, as the district court repeatedly asked Jones why he felt new counsel was
necessary. At one point, the district court pointedly asked Jones for “any reasons why
Mr. Rogers would not be able to fairly, adequately, professionally, and reasonably
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and effectively represent [him] as an attorney in this case.” Jones was unable to
articulate a reason other than his belief that defense counsel was unprepared and his
own sense of discomfort. Like the defendant in Rodriguez, Jones was unable to
establish anything more than general dissatisfaction with his attorney’s trial strategy.
The district court therefore satisfied its duty to inquire into Jones’s claims and did not
abuse its discretion in determining that the relationship between Jones and his defense
counsel did not rise to the level of a conflict necessitating a continuance and a new
attorney.
III.
Jones also argues that the district court violated his right to be present for
critical stages of trial by permitting the playback of the wiretap tapes outside his
presence. Generally, “[w]e review whether a district court proceeding violated a
defendant’s right to be present under an abuse of discretion standard.” United States
v. Moe, 536 F.3d 825, 829 (8th Cir. 2008). And when the defendant fails to assert a
right at the trial court level, we engage in plain error review. Id. at 829.
However, we need not scrutinize the district court’s decision on this issue for
an abuse of discretion or for plain error because Jones waived his right to object.
“The Supreme Court has distinguished between a right that is inadvertently left
unasserted and one that is intentionally relinquished or abandoned, noting that the
latter constitutes a waiver that extinguishes a claim altogether.” United States v.
Gutierrez, 130 F.3d 330, 332 (8th Cir. 1997) (citing United States v. Olano, 507 U.S.
725, 733 (1993)). “While forfeited claims are subject to appellate review under the
plain error standard, waived claims are unreviewable on appeal.” United States v.
Booker, 576 F.3d 506, 511 (8th Cir. 2009). Here, the record demonstrates that Jones
not only failed to object to the manner of the playback of the tapes, but that his
defense counsel assisted in devising the method by which the jury would hear the
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tapes. While Rogers initially expressed some concern over the possibility that the
wrong conversations would be played, the parties ultimately agreed to jointly compile
a list of the conversations that would satisfy the jury’s request. Rogers also told the
judge he was “glad not to be here” for the playback in the courtroom, indicating that
he had no objection to the court’s suggestion. Jones was present at this stage and
never indicated that he wished to be present at the tape playback. Under these
circumstances, we believe that Jones’s right to challenge the district court’s resolution
was waived and “our plain error analysis must come to a grinding halt.” Id.
(quotation omitted).3
We also reject Jones’s contention that the playback of the tapes for the jury
amounted to structural error. Structural errors are “defects affecting the framework
within which the trial proceeds, rather than simply an error in the trial process itself.”
Becht v. United States, 403 F.3d 541, 547 (8th Cir. 2005) (quotation omitted). Such
errors “call into question the very accuracy and reliability of the trial process and thus
3
Even if Jones merely forfeited his right to be present, he has failed to bring
forward any evidence of plain error. In order to prevail under plain error review, a
defendant “must show that the district court committed an error that is plain, i.e. clear
under current law, that he was prejudiced by the error, and that the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” United
States v. Delgado, 653 F.3d 729, 735 (8th Cir. 2011). Whether a defendant has a
right to be present for the replaying of admitted wiretap evidence during jury
deliberations is far from clear. See United States v. Sobamowo, 892 F.2d 90, 96
(D.C. Cir. 1989) (finding no confrontation clause or due process violation where the
defendant was absent when audio-taped evidence was replayed for the jury). More
importantly, Jones brought forward no evidence of misconduct in the replaying of the
tapes and therefore could not show how he was prejudiced in any way by the alleged
error. Finally, Jones failed to show how any alleged error affected “the fairness,
integrity, or public reputation” of the proceedings, especially when the great weight
of the evidence introduced at trial indicated that Jones was guilty of the charged
crimes.
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are not amenable to harmless error analysis, but require automatic reversal.” McGurk
v. Stenberg, 163 F.3d 470, 474 (8th Cir. 1998). These extreme errors have been
recognized in a very limited set of circumstances, such as “the complete denial of
counsel, a biased judge, racial discrimination in jury composition, denial of a public
trial, and a defective jury instruction on the reasonable-doubt standard of proof.”
Becht, 403 F.3d at 547. The error alleged by Jones–the possibility that Agent Nelson
spoke to the jury or that the wrong tapes were played–does not fall within any of the
existing categories of structural error. Moreover, we have previously declined the
opportunity to recognize structural error when faced with similar allegations, holding
that “a juror’s exposure to extraneous information is not structural error.” Helmig v.
Kemna, 461 F.3d 960, 963 (8th Cir. 2006). Accordingly, Jones has failed to show
any structural error in his trial.
IV.
For the foregoing reasons, we affirm Jones’s conviction.
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