Case: 10-31240 Document: 00511731148 Page: 1 Date Filed: 01/19/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 19, 2012
No. 10-31240 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RANDEL J. MASON,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
Randel Mason appeals his conviction for wire fraud and his sentence of 30
months’ imprisonment and $757,792.20 in restitution. He argues that the
district court committed plain error by failing to advise him during his guilty
plea colloquy of his right to court-appointed counsel if financially eligible, as
required by Rule 11 of the Federal Rules of Criminal Procedure. He also argues
that the district court violated his Sixth Amendment right to choice of counsel
by denying his motion, filed five weeks before his scheduled sentencing date, to
substitute appointed counsel for his retained counsel. We AFFIRM Mason’s
conviction, but VACATE his sentence and REMAND for re-sentencing.
Case: 10-31240 Document: 00511731148 Page: 2 Date Filed: 01/19/2012
No. 10-31240
I.
Mason is a building contractor and the former owner of Mason
Construction Company, Inc., which built residential homes. Mason
Construction built homes in five to seven stages. Upon completion of each
stage, Mason Construction submitted a draw on its line of credit to its financing
company, National City Mortgage (now PNC Mortgage). To receive these
draws, Mason Construction submitted a completion certification and an
inspection certification signed by an independent inspector.
The conduct relevant to Mason’s conviction involved Mason and his long-
time office assistant and co-defendant, Tammy Dixon. In August 2005, Mason
and Dixon crossed the line, submitting false documentation to National City
Mortgage. By this scheme, Mason and Dixon fraudulently obtained $825,943.60.
In December 2009, Mason and Dixon were charged with conspiracy to commit
wire fraud, in violation of 18 U.S.C. §§ 371 and 1343, and twenty-nine counts of
wire fraud, in violation of 18 U.S.C. § 1343.
Mason made his initial appearance before the magistrate judge on
January 11, 2010, with retained counsel, David Williams. On April 12, 2010,
Williams filed a motion to withdraw as counsel, which the magistrate judge
denied on April 14. Thereafter, Mason appeared before the district court with
Williams on the morning of June 3, 2010, to enter a guilty plea. The district
court, however, continued the hearing until that afternoon after Mason said he
was confused about the plea. The district court reconvened the hearing that
afternoon, but had to reschedule it until June 23, 2010, because after the
district court clarified the maximum possible sentence under the plea
agreement, Mason indicated that he did not know what to do in light of more
fully understanding the consequences of his plea. Before the conclusion of that
hearing, Mason indicated that he intended to plead guilty because he did not
think he could afford a long trial:
2
Case: 10-31240 Document: 00511731148 Page: 3 Date Filed: 01/19/2012
No. 10-31240
THE DEFENDANT: I’m sorry, but I — I don’t mean to waste the
Court’s time. I just really don’t know what to do.
THE COURT: You’re not wasting anybody’s time. That’s what I'm
paid to do. And I don’t do piecework, so I want you to be absolutely
comfortable and assured of what you’re doing. So we’ll just put this
off to another time.
....
THE DEFENDANT: Your Honor, I don’t mean to . . . But no one
ever interviewed me, and no one ever heard my side of the story.
But yet, you know, I don’t want to go to jail or — you know, I mean,
I have a serious problem with this because I didn’t create this
problem.
THE COURT: Well, that’s — then do not plead guilty. If you —
THE DEFENDANT: But I can’t afford a long trial.
THE COURT: Well, I’m not sure how long the trial will be.
Let’s tentatively set this for 10:00 on June 23, at which time you
can make up your mind what you wish to do. Okay?
Although Mason did not enter a guilty plea on June 3, he did file a
document entitled “Understanding of Maximum Penalty and Constitutional
Rights” (Understanding of Constitutional Rights), which he had signed on April
30, 2010. In that document, Mason averred that he understood his “right to be
represented by counsel (a lawyer) of [his] choice, or if [he could not] afford
counsel, [his] right to be represented by court-appointed counsel at no cost to
[him].”
On June 17, 2010, Williams filed a second motion to withdraw as Mason’s
counsel, citing a breakdown in his ability to communicate with Mason that, he
asserted, rendered effective representation impossible. The district court did
not rule on this motion until the hearing on June 23, 2010. At that hearing the
district court asked Mason about his relationship with Williams. Mason
responded that he was now satisfied with Williams:
3
Case: 10-31240 Document: 00511731148 Page: 4 Date Filed: 01/19/2012
No. 10-31240
THE COURT: You were originally scheduled for a guilty plea today,
but I gather you want to change attorneys?
THE DEFENDANT: No, sir. Mr. Williams and I have spent quite
a long time this week. I think I have a better feel now for what’s
going on.
THE COURT: All right. So tell me; are we now agreed that Mr.
Williams can represent you?
THE DEFENDANT: Yes, sir.
THE COURT: You’re sure you’re satisfied with that?
THE DEFENDANT: Yes, sir, I’m satisfied.
Before accepting Mason’s guilty plea, the district court again sought and
received Mason’s assurance that he was satisfied with Williams’s
representation:
THE COURT: . . . All right. Mr. Mason, let’s talk frankly.
This is the point at which I usually ask: Have you had all the time
that you need to discuss this with your lawyer?
THE DEFENDANT: Yes, sir.
THE COURT: You have? Are you sure you have?
THE DEFENDANT: Yes, sir.
THE COURT: And you are satisfied with him as a lawyer?
THE DEFENDANT: Yes, sir.
THE COURT: Are you sure, because — tell me about why,
how you came back to believing he was a good lawyer for you.
THE DEFENDANT: I never thought he wasn’t a good lawyer.
I just was confused. I mean, we came in with one plea agreement
and then I guess I got blindsided with another one, and I didn’t
quite understand the consequences. And we just really weren’t
communicating very well.
THE COURT: But you are now?
THE DEFENDANT: Yes, sir. He sat down and we talked at
length, and I think I understand, yes, sir.
THE COURT: Are you sure you understand what’s
happening?
THE DEFENDANT: Yes, sir.
THE COURT: And you are sure that you want to keep Mr.
Williams?
THE WITNESS [sic]: Yes, sir.
4
Case: 10-31240 Document: 00511731148 Page: 5 Date Filed: 01/19/2012
No. 10-31240
The district court then proceeded to conduct the plea-taking ceremony
required by Rule 11 of the Federal Rules of Criminal Procedure. However, the
district court did not orally advise Mason of the right of a financially eligible
defendant to have court-appointed counsel represent him at trial and every
other stage of the proceedings. Mason pleaded guilty to counts 6 and 27. The
district court accepted Mason’s plea.
On August 20, 2010, Mason filed a letter requesting “the court to appoint
an attorney who can help me.” Mason explained that he was “not working well
with . . . Williams on [his] sentencing hearing” and that he was confident that
“Williams [did] not want to spend too much time with [him] because of [his]
inability to pay promptly.” Almost a month later, the district court denied
Mason’s request without reasons.
The district court sentenced Mason on November 18, 2010. According to
the calculations in Mason’s Presentence Investigation Report (PSR), Mason’s
guidelines sentencing range was 27 to 33 months. After a lengthy hearing on
the amount of loss caused by Mason’s fraud, the district court adopted the PSR’s
calculations, and sentenced Mason to 30 months’ imprisonment on each count,
to run concurrently. The district court ordered Mason to pay $757,792.20 in
restitution to the victim mortgage company. The district court also imposed a
three-year term of supervised release for each count, to run concurrently.
After filing a timely notice of appeal, Williams filed a motion to withdraw
and to have counsel appointed to represent Mason on appeal. Mason then filed
a financial affidavit under seal. The district court determined that Mason was
financially unable to retain counsel, granted Williams’s motion to withdraw,
and ordered that counsel be appointed to represent Mason.
5
Case: 10-31240 Document: 00511731148 Page: 6 Date Filed: 01/19/2012
No. 10-31240
II.
A. Mason’s Challenge to his Guilty Plea
Mason first asks us to overturn his guilty plea. He argues that the
district court committed reversible error by failing to advise him of his right to
court-appointed counsel, if financially eligible, during his guilty plea colloquy,
as required by Fed R. Crim. P. 11(b)(1)(D).
Because Mason did not raise this issue in the district court, we review for
plain error. Fed. R. Crim. P. 52(b) (“A plain error that affects substantial rights
may be considered even though it was not brought to the court’s attention.”);
United States v. Vonn, 535 U.S. 55, 59 (2002). Mason therefore bears the burden
of proving (1) error, (2) that is plain, and (3) that affects his substantial rights.
Vonn, 535 U.S. at 62–63; United States v. Olano, 507 U.S. 725, 733–34 (2003).
We are not confined to considering only the record of the plea proceeding, but
“may consult the whole record when considering the effect of any error on
substantial rights.” Vonn, 535 U.S. at 59. If Mason satisfies the first three
prongs of the plain error analysis, we proceed to the fourth prong, which affords
us “the discretion to remedy the error—discretion which ought to be exercised
only if the error seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.” Puckett v. United States, 129 S. Ct. 1423, 1429 (2009)
(internal quotation marks omitted).
Mason has satisfied prong one. In relevant part, Rule 11 requires a
district court, before accepting a guilty plea, to “address the defendant
personally in open court,” during which address it “must inform the defendant
of, and determine that the defendant understands . . . the right to be represented
by counsel—and if necessary have the court appoint counsel—at trial and at
every other stage of the proceeding.” Fed. R. Crim. P. 11(b)(1)(D). In this case,
during the Rule 11 plea-taking ceremony, the district court did not orally advise
6
Case: 10-31240 Document: 00511731148 Page: 7 Date Filed: 01/19/2012
No. 10-31240
Mason of his right, if financially eligible, to court-appointed counsel. The
government nevertheless maintains that the district court satisfied Rule 11 by
advising Mason that, should he proceed to trial, Williams would represent him1
or, alternatively, by accepting from Mason his signed copy of the Understanding
of Constitutional Rights document. Neither of these facts satisfies the plain
language of Rule 11. Rule 11(b)(1)(D) requires district courts to inform
defendants of their right to court-appointed counsel, if necessary, not merely to
counsel. And Rule 11 expressly requires district courts to “address the
defendant personally in open court” concerning certain specified rights, not
merely to accept a defendant’s written acknowledgment of his understanding of
those rights. The district court’s failure to satisfy Rule 11’s express
requirements was error.2
1
At Mason’s aborted plea hearing on June 3, 2010, the district court advised him: “If
we had a trial, the witnesses would have to testify in your presence and in the presence of Mr.
Williams, who could object to any evidence offered by the Government. He could put on
evidence in your behalf. He could subpoena witnesses from anywhere . . . Do you understand
that?”
On June 23, 2010, before accepting Mason’s guilty plea, the district court advised him:
“If we had a trial, the witnesses would come to court and testify in your presence, in the
presence of Mr. Williams, who could cross-examine them, object to evidence . . . put on
evidence in your behalf, subpoena witnesses from anywhere. . . . Understood?”
2
The dissent would find no error here on the basis of our holding in United States v.
Sanchez, 650 F.2d 745, 748 (5th Cir. 1981), that where a defendant is represented by
appointed counsel at his guilty plea colloquy, a district court does not violate Rule 11 if it
informs the defendant of his right to counsel at all stages of the proceedings, but not “that this
right [is] a right to appointed counsel.” Sanchez is distinguishable because Mason was
represented by retained, not appointed, counsel at his plea hearing. More importantly,
Sanchez’s holding does not survive the 2002 amendments to Rule 11. Sanchez grounded its
holding in a provision of the text of Rule 11 that has since been deleted: “Rule 11(c)(2) [the
precursor to the present Rule 11(b)(1)(D)], by its own language, limits the necessity for such
a charge to situations where ‘the defendant is not represented by an attorney’ at the plea
proceeding.” Id. The dissent would avoid the force of the deletion of this clause by resorting
to the Advisory Committee Notes pertinent to the 2002 amendments to Rule 11, which assert
that those amendments were “intended to be stylistic only, except as noted below.” That
comment in the Notes cannot, however, alter the plain text of the current version of Rule 11.
“[I]t is that Rule which by its terms governs,” not expressions of the drafters’ intent in the
Advisory Committee Notes. Johnson v. United States, 520 U.S. 461, 466 (1997); see also Tome
7
Case: 10-31240 Document: 00511731148 Page: 8 Date Filed: 01/19/2012
No. 10-31240
Mason satisfies prong two as well. “‘Plain’ is synonymous with ‘clear’ or,
equivalently, ‘obvious.’” Olano, 507 U.S. at 734. Because the requirements of
Rule 11 are explicit, and a review of the transcript shows that the mandatory
advice was not given, the district court’s error in failing to adhere to Rule 11 was
obvious.
Accordingly, we must determine whether the district court’s error affected
Mason’s substantial rights. It is well-settled that, “[a]s a general rule, an error
affects a defendant’s substantial rights only if the error was prejudicial.”
United States v. Gonzalez-Rodriguez, 621 F.3d 354, 363 (5th Cir. 2010). “Error
is prejudicial if there is a reasonable probability that the result of the
proceedings would have been different but for the error.” Id. To prevail,
therefore, Mason “must show a reasonable probability that, but for the error,
he would not have entered the plea.” United States v. Dominguez Benitez, 542
U.S. 74, 83 (2004). Moreover, “[t]he probability of a different result must be
sufficient to undermine confidence in the outcome of the proceedings.”
Gonzalez-Rodriguez, 621 F.3d at 363.
Applying these principles, we hold that the district court’s error did not
affect Mason’s substantial rights. Mason’s strongest evidence that the district
court’s error caused him to plead guilty is his exchange with the district court
v. United States, 513 U.S. 150, 167–68 (1995) (Scalia, J., concurring in part and concurring in
the judgment) (explaining that “[i]t is the words of the Rules that have been authoritatively
adopted—by this Court, or by Congress if it makes a statutory change” and that although the
Notes are submitted to the Court and Congress, “there is no certainty that either we or they
read [them], nor is there any procedure by which we formally endorse or disclaim them. That
being so, the Notes cannot, by some power inherent in the draftsmen, change the meaning that
the Rules would otherwise bear.”). Although we have, as the dissent points out, recently cited
the relevant portion of Sanchez with approval, see United States v. Saucedo-Rios, 439 F.App’x
316, 317 (5th Cir. 2011) (per curiam) (unpublished), that case is not precedential. Nor does
it appear that Sanchez’s vitality after the 2002 amendment was called into question in
Saucedo-Rios. Nor was Saucedo-Rios’s reliance on Sanchez necessary to its holding, because
the panel also held that the defendant failed to satisfy the substantial rights prong of the plain
error test. Id.
8
Case: 10-31240 Document: 00511731148 Page: 9 Date Filed: 01/19/2012
No. 10-31240
at his June 3, 2010 hearing. After deciding not to plead guilty, Mason lamented
to the district court that “no one ever interviewed me, and no one ever heard my
side of the story. But yet, you know, I don’t want to go to jail or—you know, I
mean, I have a serious problem with this because I didn’t create this problem.”
After the district court responded, “then do not plead guilty,” Mason objected,
“But I can’t afford a long trial.” As Mason would have it, this statement
definitively proves that he would have decided to proceed to trial right then and
there if only he could have afforded trial counsel. This interpretation would,
indeed, be quite powerful if the only record evidence were the transcript of the
June 3 hearing. But the remainder of the record precludes Mason’s
interpretation.
Most fatal to Mason’s position, the record reveals that Mason was aware
of his right to appointed trial counsel notwithstanding the district court’s error.
More than a month before his first attempt to plead guilty, Mason signed the
Understanding of Constitutional Rights document, a simple document, with
barely over a page of double-spaced text, that plainly states that he understood
his right to a court-appointed attorney if he could not afford his own. By
affixing his signature to that document, Mason “state[d] that I understand . .
. [m]y right to be represented by counsel (a lawyer) of my choice, or if I cannot
afford counsel, my right to be represented by court-appointed counsel at no cost
to me.” Mason’s retained attorney also signed the document. Recognizing the
difficulty that this document poses for his position, Mason argues that although
the document reflects his understanding of his right to court-appointed counsel
for his guilty plea hearing, it does not demonstrate that he was aware of his
right to appointed trial counsel. He asserts that this was his understanding
given that the document “was prepared in connection with a plea hearing” and
nowhere explicitly states that the right to appointed counsel extends to trial.
9
Case: 10-31240 Document: 00511731148 Page: 10 Date Filed: 01/19/2012
No. 10-31240
We are unconvinced. Mason could not have reasonably read the document as
referring to his right to appointed counsel only in connection with his guilty
plea, and not trial, because the other constitutional rights he acknowledged in
that document pertain to trial, not his guilty plea.
Moreover, there are many indications in the record that Mason’s guilty
plea was voluntary. Before accepting Mason’s plea on June 23, 2010, the
district court twice requested and obtained his assurance that he wanted to
plead guilty. At the hearing, Mason twice indicated that he understood what
was occurring. The district court found him competent to enter his plea. And
although Mason had previously expressed dissatisfaction with Williams, his
attorney, he repeatedly reassured the district court before pleading guilty that
he was happy with Williams representing him, and was sure he wanted to keep
him as his lawyer. The following conversation is illustrative:
THE COURT: And you are satisfied with [Williams] as a lawyer?
THE DEFENDANT: Yes, sir.
THE COURT: Are you sure, because — tell me about why, how you
came back to believing he was a good lawyer for you.
THE DEFENDANT: I never thought he wasn’t a good lawyer. I just
was confused. I mean, we came in with one plea agreement and
then I guess I got blindsided with another one, and I didn’t quite
understand the consequences. And we just really weren’t
communicating very well.
THE COURT: But you are now?
THE DEFENDANT: Yes, sir. He sat down and we talked at length,
and I think I understand, yes, sir.
THE COURT: Are you sure you understand what’s happening?
THE DEFENDANT: Yes, sir.
THE COURT: And you are sure that you want to keep Mr.
Williams?
THE WITNESS [sic]: Yes, sir.
Given that Mason knew about his right to appointed counsel from the
Understanding of Constitutional Rights document, and that he unequivocally
10
Case: 10-31240 Document: 00511731148 Page: 11 Date Filed: 01/19/2012
No. 10-31240
reiterated that his plea was voluntary and that he was satisfied with his
attorney, we conclude that there was no “reasonable probability that, but for the
error, he would not have entered the plea.” Dominguez Benitez, 542 U.S. at 83.
To be sure, the district court should have complied with Rule 11 at Mason’s plea
colloquy and, in a perfect world, the district court also would have responded to
Mason’s statement that he could not afford a long trial by advising him of his
right to court-appointed counsel. Nonetheless, Mason understood his right to
have a lawyer appointed and repeatedly asserted that he wanted to plead guilty
and that he was satisfied with Williams’s representation. The district court’s
Rule 11 error did not, therefore, affect Mason’s substantial rights. Mason’s
conviction must stand.
B. Mason’s Right to Choice of Counsel at Sentencing
Mason next argues that the district court violated his Sixth Amendment
right to choice of counsel by denying his request to have counsel appointed to
represent him at sentencing. Mason made his request in the form of a letter
filed on August 20, 2010, five weeks before the original date of his sentencing
hearing, and almost three full months before his actual sentencing hearing. In
his letter Mason requested that the district court “appoint an attorney who can
help me,” in part because he was “not working well with [his retained attorney]
Williams on [his] sentencing hearing” and because he was confident that
“Williams [did] not want to spend too much time with [him] because of [his]
inability to pay promptly.” The district court denied Mason’s request without
reasons almost a month later.
We review de novo the district court’s denial of Mason’s request for
appointed counsel. Mason’s argument turns on the proper interpretation of his
Sixth Amendment rights. That is a question of law, which we review de novo.
See, e.g., United States v. White, 465 F.3d 250, 254 (5th Cir. 2006) (“The
11
Case: 10-31240 Document: 00511731148 Page: 12 Date Filed: 01/19/2012
No. 10-31240
application of the Sixth Amendment . . . is a question of law that we review de
novo.”).
The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his
defence.” U.S. Const. amend. VI. The Supreme Court has interpreted this
provision as affording indigent defendants the right to court-appointed counsel.
Johnson v. Zerbst, 304 U.S. 458, 462–63 (1938); see also Gideon v. Wainwright,
372 U.S. 335, 342–45 (1963) (holding that the right of indigent defendants to
appointed counsel is made obligatory on the States by the Fourteenth
Amendment). The Supreme Court has also held that the Sixth Amendment
generally guarantees criminal defendants the distinct right to representation by
the counsel of their choice. See Powell v. Alabama, 287 U.S. 45, 53 (1932).
However, “the right to counsel of choice does not extend to defendants who
require counsel to be appointed for them.” United States v. Gonzalez-Lopez, 548
U.S. 140, 151 (2006). This is because the right to court-appointed counsel
guarantees the right to adequate representation, not representation by a
particular attorney. Caplin & Drysdale, Chartered v. United States, 491 U.S.
617, 624 (1989).
Before considering whether these Sixth Amendment rights entitled Mason
to substitute appointed for retained counsel, we must determine whether Mason
effectively asserted his Sixth Amendment rights. The parties have not cited to
any case that discusses what a defendant who is represented by retained counsel
must do to invoke his right to appointed counsel, and we are unaware of any
binding precedent on this issue.3 We are cognizant that too lax of a standard
3
The government argues that Mason’s request failed to comply with United States v.
Cano, 519 F.3d 512, 516 (5th Cir. 2008), which states the rule that a defendant’s request to
represent himself must be “clear and unequivocal.” Cano is inapposite here because the
defendant is not waiving his constitutional right to counsel, but asserting his Sixth
Amendment rights to choice of counsel and court-appointed counsel. See Brown v.
12
Case: 10-31240 Document: 00511731148 Page: 13 Date Filed: 01/19/2012
No. 10-31240
might encourage gamesmanship because a defendant could make a vague
request for appointment of new counsel, and if that request is ignored or denied,
wait and see if subsequent proceedings conclude favorably for him before
deciding whether or not to challenge the denial of his request. Nevertheless, it
is unnecessary to define the parameters of the standard in this case. On these
facts, we conclude that Mason effectively invoked his Sixth Amendment rights.
He unambiguously, and in writing, requested appointed counsel. In his letter
to the district court, Mason asked “the court to appoint an attorney who can help
me.” The district court interpreted Mason’s letter as a request for a court-
appointed lawyer, describing the letter in its order as “defendant’s motion to
appoint counsel.” Nor could the district court have reasonably construed
Mason’s request as a request for hybrid representation because Mason cited
several reasons that, he asserted in his letter, made “it necessary to request a
change” (emphasis added). Because Mason asserted his Sixth Amendment
rights, we must decide whether the Sixth Amendment entitled him to substitute
appointed counsel.
We have not previously addressed whether a financially eligible defendant
has a Sixth Amendment right to replace his retained counsel with court-
appointed counsel. We therefore must turn for guidance to our precedents
governing analogous situations. Under our precedents, a defendant who is
already represented by appointed counsel is not entitled to have the court
appoint substitute counsel unless he can demonstrate “good cause, such as a
conflict of interest, [or] a complete breakdown in communication.” United States
v. Young, 482 F.2d 993, 995 (5th Cir. 1973). We apply this good cause
Wainwright, 665 F.2d 607, 610 (5th Cir. 1982) (en banc) (observing that the reason for
requiring an unequivocal request to proceed pro se is that the defendant is waiving his
constitutional right to assistance of counsel). Moreover, even assuming arguendo that this
rule applies, Mason satisfied it because his request was clear and unequivocal.
13
Case: 10-31240 Document: 00511731148 Page: 14 Date Filed: 01/19/2012
No. 10-31240
requirement because the only Sixth Amendment right that could entitle an
indigent defendant to a new attorney is the right to effective assistance of
counsel. See id. If an indigent’s current appointed counsel is constitutionally
adequate, he has “no cognizable complaint.” Caplin & Drysdale, 491 U.S. at 624.
By contrast, a defendant need not show good cause to replace existing counsel
with new retained counsel. The Sixth Amendment guarantees such a defendant
the freedom to secure representation by any lawyer he should choose, provided
that none of the recognized exceptions to the right to choice of counsel applies.
See Wheat v. United States, 486 U.S. 153, 159 (1988) (listing exceptions to the
right); Gonzalez-Lopez, 548 U.S. at 151–52 (same).
In our view, Mason’s situation is more akin to that of a defendant
requesting permission to substitute new retained counsel than that of a
defendant asking for a different court-appointed lawyer. When Mason asked the
district court to appoint an attorney to assist him he had not yet exercised his
right to appointed counsel. Therefore, Mason still retained his Sixth
Amendment right to choice of counsel. See id. at 151 (“[T]he right to counsel of
choice does not extend to defendants who require counsel to be appointed for
them.”). Consistent with that right, Mason could have substituted any new
retained counsel he wished. It follows that one of the constitutionally protected
choices Mason could have made was to invoke his right as an indigent to court-
appointed counsel.4 Because Mason retained the right to choice of counsel, he
was not required to show good cause to substitute appointed counsel. As we
4
In the usual case, remand would be required for the district court to inquire into the
defendant’s financial eligibility for appointed counsel. That inquiry is unnecessary here,
however, because according to the PSR,“[Mason] and his wife have zero assets, unsecured debt
exceeding $300,000, and a negative net monthly cash flow of $8,000,” and there is nothing in
the record to refute these amounts. Unsurprisingly, when the district court considered
Mason’s financial eligibility for appointed appellate counsel, it found him eligible, and
appointed Mason’s present counsel. On these facts, there can be no doubt that Mason was
financially eligible for court-appointed counsel.
14
Case: 10-31240 Document: 00511731148 Page: 15 Date Filed: 01/19/2012
No. 10-31240
have explained, the good cause standard applies when a defendant seeks new
appointed counsel because a defendant is entitled to a new appointed lawyer
only if he can show constitutionally inadequate representation. See Young, 482
F.2d at 995. Here, however, Mason was not already represented by appointed
counsel when he requested appointed counsel.
The dissent finds “baffling” our conclusion that Mason’s request for
appointed counsel implicated his constitutional right to choice of counsel. In the
dissent’s view, that right extends only to defendants who desire to retain new
counsel. To support this narrow articulation of the right, the dissent selectively
quotes from the Supreme Court’s opinions in Gonzalez-Lopez and Caplin &
Drysdale. In Gonzalez-Lopez, the Court explained that the Sixth Amendment
entitles “a defendant who does not require appointed counsel to choose who will
represent him.” 548 U.S. at 144. In Caplin & Drysdale, the Court wrote that
the right to choice of counsel “does not go beyond ‘the individual’s right to spend
his own money to obtain the advice and assistance of . . . counsel.’” 491 U.S. at
626 (quoting Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 370
(1985) (Stevens, J., dissenting)). Read in context, however, these statements say
nothing about whether the right to choice of counsel extends to a defendant in
Mason’s situation. When Gonzalez-Lopez limited the right to “a defendant who
does not require appointed counsel,” it was merely reiterating the established
rule that defendants who require appointed counsel have no right to choose
which lawyer the state appoints. See Caplin & Drysdale, 491 U.S. at 624 (“The
[Sixth] Amendment guarantees defendants in criminal cases the right to
adequate representation, but those who do not have the means to hire their own
lawyers have no cognizable complaint” under the distinct Sixth Amendment
right to choice of counsel). The dissent’s quotation from Caplin & Drysdale is
likewise irrelevant to this case. There, the Court wrote that the choice of counsel
right “does not go beyond ‘the individual’s right to spend his own money’” as
15
Case: 10-31240 Document: 00511731148 Page: 16 Date Filed: 01/19/2012
No. 10-31240
support for its holding that the Sixth Amendment does not create a right for
criminal defendants to expend forfeitable assets to retain their preferred
counsel. Id. at 626–28. The Court was simply enunciating the principle, stated
explicitly in its next sentence, that “[a] defendant has no Sixth Amendment right
to spend another person’s money for services rendered by an attorney.” Id. at 626
(emphasis added). Thus, neither Gonzalez-Lopez nor Caplin & Drysdale affects
our conclusion that Mason retained his Sixth Amendment right to choice of
counsel because he was initially represented by private counsel. Most of the
remainder of the dissent’s critique is inapplicable to our reasoning because it
follows from the false premise that Mason had no right to choice of counsel.
Accordingly, we hold that, pursuant to the Sixth Amendment right to
choice of counsel, a criminal defendant is not required to show good cause to
substitute appointed for retained counsel, provided of course that he can
establish financial eligibility.5 Our holding accords with a recent Ninth Circuit
decision. See United States v. Rivera-Corona, 618 F.3d 976, 979–81 (9th Cir.
2010) (holding that a defendant need not show good cause to replace retained
with appointed counsel because of the defendant’s “qualified right to choice of
counsel”). The First Circuit has reached the opposite conclusion, but in a case
in which it devoted scant attention to the issue presented here—probably
because the defendant did not argue that he had a per se right to substitute
appointed counsel, but that the district court erred by failing to inquire into an
5
We recognize that the Sixth Amendment right to choice of counsel is qualified, not
absolute. The Supreme Court has held that a defendant may not insist on representation by
a non-attorney or an attorney disqualified by a conflict of interest, and that a trial court may
balance the right to choice of counsel against the needs of fairness and the demands of its
calendar. See Gonzalez-Lopez, 548 U.S. at 151–52. These exceptions, however, are not
applicable here. The district court did not mention the demands of its calendar in denying
Mason’s request, and that concern would not seem to be implicated in this case because Mason
moved for substitution of counsel five weeks before his scheduled sentencing hearing. None
of the other exceptions are present because Mason has asked the court to appoint counsel, not
for permission to substitute a particular attorney.
16
Case: 10-31240 Document: 00511731148 Page: 17 Date Filed: 01/19/2012
No. 10-31240
alleged conflict of interest between the defendant and his attorney. See United
States v. Mota-Santana, 391 F.3d 42, 45–47 (1st Cir. 2004).
We conclude that the district court violated Mason’s Sixth Amendment
right to choice of counsel by denying his motion to replace Williams with new
counsel for sentencing.6 Moreover, because Mason was financially eligible, he
was entitled to court-appointed counsel.7 Re-sentencing is required here because
the Supreme Court has squarely held that deprivation of the right to choice of
counsel is not subject to harmless error review. See Gonzalez-Lopez, 548 U.S. at
148–50 (holding that “erroneous deprivation of the right to counsel of choice
6
The dissent misconstrues the right to counsel of choice in accusing us of “tak[ing]
Gonzalez-Lopez much too far.” The dissent treats Gonzalez-Lopez as if its facts establish the
constitutional floor for demonstrating a violation of the right. But Gonzalez-Lopez is just one
example of a violation of a defendant’s right to choice of counsel. What matters is that Mason
has shown that he possessed the right and that none of the recognized exceptions apply to him.
7
The dissent attacks a strawman when he criticizes our opinion for “skip[ping] the role
of the [trial] judge” and giving defendants the green light to “at will change lawyers midway
in the proceeding.” Our ruling does no such thing. While it is true that the Sixth Amendment
right to choice of counsel precludes imposition of a good cause standard on defendants, trial
courts retain “wide latitude” to balance “the right to counsel of choice against . . . the demands
of [their] calendar[s].” Gonzalez-Lopez, 548 U.S. at 152. Thus, when a defendant asserts the
right “midway in the proceeding,” a trial court may deny the request if a continuance for new
counsel would disrupt the court’s schedule. See, e.g., United States v. Jones, 662 F.3d 1018,
1024–25 (8th Cir. 2011) (finding no abuse of discretion in the district court’s denial of
defendant’s request for a continuance to retain new counsel the week before trial). In this
case, the district court gave no indication that it was denying Mason’s motion due to
scheduling problems. Indeed, that reason would not seem to apply here because Mason
requested the change five weeks before his sentencing was scheduled to occur and three
months before Mason’s actual sentencing hearing.
The dissent’s reliance on United States v. Dilworth is therefore misplaced. 524 F.2d
470 (5th Cir. 1975). The dissent cites Dilworth to support the criticism that we are giving
“[m]ore effect . . . to Mason’s expression of dissatisfaction than the court has given [to similar
expressions] in the past.” But Dilworth is inapposite because it merely illustrates the
unremarkable proposition that a court may balance the qualified right to choice of counsel
against scheduling demands.
Our holding is also fully consistent with our prior decision in United States v. Dinitz,
538 F.2d 1214 (5th Cir. 1976), which the dissent also cites. In Dinitz, we explained that “we
must place th[e] qualified right to choose one’s own counsel against the backdrop of judicial
discretion.” Id. at 1219. We do not quarrel with this principle, which is given effect through
the established exceptions to the Sixth Amendment right to choice of counsel.
17
Case: 10-31240 Document: 00511731148 Page: 18 Date Filed: 01/19/2012
No. 10-31240
. . . qualifies as [a] structural error,” which is not subject to review for
harmlessness (internal quotation marks omitted)).8
The dissent’s oft-repeated theme is that it is unjustifiable to remand for
re-sentencing where, as here, the record is bereft of evidence of any deficiencies
in Mason’s representation by his retained counsel. Eminent jurists agree. See
id. at 152–62 (Alito, J., dissenting) (joined by Roberts, C.J., and Kennedy and
Thomas, JJ.) (arguing that some showing of prejudice is required to establish a
Sixth Amendment choice of counsel violation and that such violations should be
subject to harmless error review). Yet for better or worse, this position only
commanded a minority of Justices in Gonzalez-Lopez, and is not currently the
law.9
8
We make clear that while Gonzalez-Lopez requires re-sentencing given the violation
of Mason’s right to choice of counsel, it does not, by itself, compel our antecedent conclusion
that Mason was deprived of that Sixth Amendment right. We reach that conclusion because
there is no basis in precedent or principle for extending the right to defendants who seek to
replace retained counsel with new retained counsel but not to financially eligible defendants
who seek to replace retained counsel with court-appointed counsel.
9
The dissent indulges in policy argument, criticizing our decision for “mak[ing] trouble
for [trial] judges.” That line of critique confuses our role as judges. Our sole task in this case
is to answer the legal questions presented. If our interpretation of the Constitution and
binding precedent requires us to enunciate a constitutional right that may impose some
additional burdens on trial courts, then so be it. Rights, by their nature, have costs.
Nevertheless, it is worth observing that the dissent both misstates and overstates the
practical consequences of this decision. First, the dissent asserts that defendants “may now
unilaterally force substitution of court-appointed counsel at any time without any
demonstration that their present counsel is unable or unwilling to continue representing
them” (emphasis added). Not true. Only defendants who can demonstrate financial eligibility
to the district court are entitled to substitute court-appointed counsel, and the district court
retains the discretion to deny a request for substitution where one of the exceptions to the
choice of counsel right applies.
Second, the dissent warns that our decision “supplies defendants with a reliable
delaying tactic, because new counsel will nearly always require a continuance to get up to
speed.” In fact, as a delaying tactic, our decision will be useless, or at the very most unreliable
to defendants, because under established Sixth Amendment principles, a district court may
deny a motion to substitute counsel if a continuance is necessary as an exercise of its “wide
latitude” to balance “the right to counsel of choice against . . . the demands of its calendar.”
Gonzalez-Lopez, 548 U.S. at 152 (citing Morris v. Slappy, 461 U.S. 1, 11–12 (1983)).
Finally, the dissent contends that the “fact-bound character” of our holding that Mason
18
Case: 10-31240 Document: 00511731148 Page: 19 Date Filed: 01/19/2012
No. 10-31240
We are sympathetic to the dissent’s frustration, which was also expressed
by the dissenting Justices in Gonzalez-Lopez. For Mason, our decision may
represent the very definition of a hollow victory. There is nothing to guarantee
Mason a lighter sentence the second time around, and it is possible that he even
could receive a harsher sentence. Alas, we are duty-bound by higher authority.
Because Mason’s Sixth Amendment right to choice of counsel has been abridged,
remand is obligatory. Mason is entitled to a new sentencing hearing.
III.
We AFFIRM Mason’s conviction, but VACATE his sentence and REMAND
for re-sentencing.
effectively invoked his Sixth Amendment rights will leave district courts guessing as to
whether ambiguous letters are requesting appointed counsel or merely expressing
dissatisfaction with the defendant’s current representation by retained counsel. This is a valid
concern. We agree that district courts would benefit from a clear standard regarding what a
defendant like Mason must say to invoke his Sixth Amendment rights. This question was not
well-briefed, however, and we are therefore loath to decide it in this case. Moreover, the
present lack of clarity is not a dire problem. Most communications, as the communication in
this case, will either unambiguously request or unambiguously fail to request court-appointed
counsel, and courts can err on the side of caution with respect to truly ambiguous
communications by requesting clarification. We must also emphasize that this decision
applies only to the narrow class of cases in which a defendant who is financially eligible for
appointed counsel is nevertheless represented by retained counsel, and then becomes unhappy
with his retained counsel and requests a court-appointed lawyer. Presumably because it is
rare for an indigent defendant to be able to retain counsel and because many defendants
(rightly or wrongly) are convinced that they will receive better representation from private
rather than appointed counsel, the situation governed by this case has, apparently, rarely
arisen, as reflected by the dearth of controlling or even persuasive authority on point.
19
Case: 10-31240 Document: 00511731148 Page: 20 Date Filed: 01/19/2012
No. 10-31240
REAVLEY, J., Dissenting:
I would affirm because the patient district judge committed no error.
Mason had the assistance of his retained counsel from his initial appearance in
court through his sentencing, and he makes no contention that this
representation was ineffective. Yet the panel majority finds that Mason was
denied the right to replace his counsel, and orders a re-sentencing.
I.
The panel first faults the judge for failing to inform Mason of his right to
court-appointed counsel at the June 23 hearing. With retained counsel present
and after all that had been said by defendant about his counsel, it was not
necessary for the court to raise the right to have appointed counsel. Rule 11 does
require the information to be given “if necessary.” However the rule be
construed, I could find no error for a judge not stating the right to appointed
counsel under those circumstances, when it could imply to defendant the court’s
lack of confidence in present counsel.
In United States v. Sanchez, we held that Rule 11 did not inflexibly require
a district court “to personally inform [the defendant] that he was entitled to
appointed counsel at all stages of the proceedings.”1 Rule 11’s current paragraph
(b)(1)(D) was at that time numbered (c)(2), and it began with the qualifying
phrase “if the defendant is not represented by an attorney . . . .”2 That phrase
was removed in the general restyling and restructuring of the Rules of Criminal
1
650 F.2d 745, 748 (5th Cir. 1981).
2
Compare Fed. R. Crim. P. 11(b)(1)(D); with Fed. R. Crim. P. 11(c)(2), U.S.C.A. (West,
2001).
20
Case: 10-31240 Document: 00511731148 Page: 21 Date Filed: 01/19/2012
No. 10-31240
Procedure undertaken in 2002.3 The change was not intended to alter paragraph
(c)(2)’s substance.4
We recently relied on Sanchez in our unpublished opinion in United States
v. Saucedo-Rios.5 The district court in that case had “failed to inform [the
defendant] that he had the right to court-appointed counsel.”6 We found no
violation of Rule 11. The omitted advice would not have been helpful, we
explained, because the defendant “was, in fact, represented by court-appointed
counsel throughout the proceedings in the district court.”7 We cited Sanchez for
the proposition that “Rule 11 limits the necessity for such a charge to situations
where the defendant is not represented by an attorney at the plea proceeding.”8
I agree with Saucedo-Rios’s interpretation of paragraph (b)(1)(D) to allow some
discretion to forgo advice regarding appointed counsel, and the omission here
was certainly harmless.
II.
Mason’s complaint is that he was not given an appointed lawyer in
response to his letter to the court on August 20. More effect is given by this
panel to Mason’s expression of dissatisfaction than the court has given in the
past. See United States v. Dilworth, 524 F.2d 470 (5th Cir 1976). Mason’s
request was denied by the court, understandably after what had been said at
the June 23 hearing and having no reason to think Mason would not receive
3
Fed. R. Crim. P. 11, Advisory Committee Notes, 2002 Amendments.
4
The Advisory Committee’s notes for the 2002 amendments explain that the changes
made to Rule 11 were “intended to be stylistic only, except as noted below.” The discussion
following that statement makes no mention of substantive changes to paragraph (c)(2).
5
No. 09-50987, 2011 WL 3684500, *1 (5th Cir., Aug. 22, 2011) (unpublished).
6
Id.
7
Id.
8
Id. (citing Sanchez, 650 F.2d at 748 (internal quotation marks omitted)).
21
Case: 10-31240 Document: 00511731148 Page: 22 Date Filed: 01/19/2012
No. 10-31240
competent representation from his attorney. And that representation did
continue without objection. Sentencing was set for September 28 but was
continued until November 18 upon motion by the attorney Williams. On that
date the defendant appeared with Williams and sentencing was completed
without any complaint about or from counsel. I submit that there can be no
legitimate objection to this judge’s performance.
But the majority holds that by denying Mason’s letter requesting
appointed counsel, the district court somehow deprived Mason of “[his] Sixth
Amendment right to choice of counsel . . . .” I find this conclusion baffling. The
panel cites only the Supreme Court decision stating that right to choice of
counsel entitles “a defendant who does not require appointed counsel to choose
who will represent him.” United States v. Gonzalez-Lopez.9 It “does not go
beyond the individual’s right to spend his own money to obtain the advice and
assistance of . . . counsel.” Chaplin & Drysdale, Chartered v. United States.10
Mason never sought to replace Williams with a new retained lawyer, and he
never asked for time or assistance to find another retained lawyer.
The only right that Mason’s letter at mid-case could possibly implicate was
his constitutional right to a publicly paid attorney incident to his right to
effective assistance of counsel. When a defendant with an appointed attorney
wishes to replace the attorney with a different appointed attorney, we require
the defendant to show good cause. United States v. Young.11 We require that
showing because “those who do not have the means to hire their own lawyers
have no cognizable complaint so long as they are adequately represented . . . .”12
9
548 U.S. 140, 144, 126 S. Ct. 2557, 2561 (2006).
10
491 U.S. 617, 626, 109 S. Ct. 2646, 2652 (1989) (internal quotation marks omitted).
11
482 F.2d. 993, 995 (5th Cir. 1973).
12
Chaplin & Drysdale, 91 U.S. at 624, 109 S. Ct. at 2652.
22
Case: 10-31240 Document: 00511731148 Page: 23 Date Filed: 01/19/2012
No. 10-31240
Mason’s position is equivalent. The only cognizable ground on which he can be
constitutionally entitled to representation at public expense is that he cannot
otherwise secure constitutionally effective representation. Surely establishing
that requires some showing that his retained counsel’s assistance would likely
fall short of the constitutional minimum. The panel majority does not think so.
It takes the view that “Because Mason retained the right to choice of counsel, he
was not required to show good cause to substitute appointed counsel.” Mason
did not “retain” the right to choice of counsel in any way that sets him apart
from a defendant who has accepted appointed counsel. Mason did not assert the
right to choice of counsel, and the fact that he could have bears not at all on
whether the district court should have appointed a lawyer to replace Williams.
Parties to judicial trials may not at will change lawyers midway in the
proceeding. This court considered the right to choose counsel in United States
v Dimitz, 538 F.2nd 1214 (1976), beginning with the Supreme Court opinion in
Powell v Alabama, 53 S.Ct. 55 (1932). We explained that the qualified right to
choose one’s own counsel must be placed against the backdrop of judicial
discretion. The judge has discretion in deciding whether to allow changes in
counsel considering the defendant’s choice and all circumstances. This panel
skips the role of the judge and the need for cause to justify the change, and then
sweeps aside my concerns, by declaring its decision to be the command of the
Supreme Court in Gonzalez-Lopez. The panel takes Gonzalez-Lopez much too
far. There the defendants chosen lawyer was removed unlawfully by the court
and, despite repeated requests by the defendant, that chosen lawyer was denied
him. Here, after hearings and accommodations for Mason, he writes a letter to
the judge and despite all that went before and the continued representation by
the same lawyer, we hold that this indication of Mason’s preference was enough
to nullify the sentence. What this panel does is promote the right to choose
counsel to give the defendant the decision on whom shall be his counsel at every
23
Case: 10-31240 Document: 00511731148 Page: 24 Date Filed: 01/19/2012
No. 10-31240
stage of the case, except for changing appointed counsel. I find no justification
for that exaggeration of Gonzalez-Lopez.
This decision makes trouble for judges. Defendants who have already
hired constitutionally adequate counsel may now unilaterally force substitution
of court-appointed counsel at any time without any demonstration that their
present counsel is unable or unwilling to continue representing them. This
supplies defendants with a reliable delaying tactic, because new counsel will
nearly always require a continuance to get up to speed. The fact-bound
character of the majority’s holding that Mason’s letter effectively asserted his
rights adds to the difficulties. Defendants in criminal cases are understandably
anxious about the amount of time and attention their attorneys devote to their
cases. Many express their worries in letters directed to the presiding judge.
Every time a defendant expresses dissatisfaction with retained counsel, the
district court will have to wonder whether the defendant’s communication is one
that requires the court to choose between substituting appointed counsel or
risking that every subsequent proceeding in the case will have to be done over
again.
Finally, I respectfully suggest to my Fifth Circuit colleagues that we not
order resentencing unless the legal rights of a defendant require that.
Resentencing burdens the marshals to transport and attend the defendant and
then imposes on a busy district judge to repeat the sentencing.
24