Case: 11-15973 Date Filed: 11/13/2012 Page: 1 of 13
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15973
Non-Argument Calendar
________________________
D.C. Docket No. 6:10-cr-00029-BAE-GRS-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,
versus
WAYNE EVANS,
a.k.a. Smiley,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(November 13, 2012)
Before MARCUS, WILSON, and ANDERSON, Circuit Judges.
PER CURIAM:
Wayne Evans appeals his convictions after a jury found him guilty of
conspiracy to commit theft from a federal firearms licensee, in violation of 18
Case: 11-15973 Date Filed: 11/13/2012 Page: 2 of 13
U.S.C. § 371; theft of firearms, in violation of 18 U.S.C. § 922(l); theft from a
federal firearms licensee, in violation of 18 U.S.C. § 922(u); receipt of stolen
firearms, in violation of 18 U.S.C. § 922(j); possession of firearms and
ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1); and transportation of
stolen firearms, in violation of 18 U.S.C. § 922(I). On appeal, Evens argues that
the district court: (1) violated his constitutional right to counsel when it denied his
dual requests for substitute counsel and his attorney’s motion to withdraw; (2)
violated Evans’s constitutional right to present a full defense when it denied his
motion for a continuance of trial; and (3) violated Evans’s constitutional rights to
due process, compulsory process, and a fair trial when it refused to conduct a plea
colloquy and accept his guilty plea. For the following reasons, we affirm Evans’s
conviction.
I.
Evans contends that the district court abused its discretion and violated his
constitutional right to counsel1 when it denied his pre-trial motions for substitute
1
Evans also contends that the district court’s ruling violated his constitutional right to
“choice of counsel.” Although an indigent criminal defendant has an absolute right to be
represented by counsel, he does not have a right to be represented by a particular lawyer, or to
demand a different appointed lawyer except for good cause. Thomas v. Wainwright, 767 F.2d
738, 742 (11th Cir. 1985); see also Morris v. Slappy, 461 U.S. 1, 11–15, 103 S. Ct. 1610, 1617
(1983) (declining to create a Sixth Amendment right to a “meaningful attorney-client
relationship”). “Good cause . . . means a fundamental problem, ‘such as a conflict of interest, a
complete breakdown in communication or an irreconcilable conflict which leads to an apparently
2
Case: 11-15973 Date Filed: 11/13/2012 Page: 3 of 13
counsel and his attorney’s pre-trial motion to withdraw. Evans claims that he was
prejudiced by the district court’s ruling because it forced him to choose between a
broken relationship with distrusted counsel and the more difficult task of self-
representation.
We typically review the denial of a motion for substitute counsel and the
denial of a motion to withdraw for abuse of discretion. See United States v.
Berger, 375 F.3d 1223, 1226 (11th Cir. 2004). However, “[t]he law is settled that
appellate courts are without jurisdiction to hear appeals directly from federal
magistrates,” United States v. Schultz, 565 F.3d 1353, 1359 (11th Cir. 2009) (per
curiam) (quotation marks omitted), and instead Federal Rule of Criminal
Procedure 59 governs. Rule 59 requires that a defendant file objections to a
magistrate judge’s order within fourteen days of being served a copy of that order;
“[f]ailure to object in accordance with this rule waives a party’s right to review.”
Fed. R. Crim. P. 59(a).
Here, the magistrate judge entered the order denying Evans’s requests for
unjust verdict.’” United States v. Garey, 540 F.3d 1253, 1263 (11th Cir. 2008) (en banc) (quoting
Young, 482 F.2d at 995). Although the record reflects that Evans and his attorney had a difficult
relationship, there was not a “complete breakdown in communication” sufficient to reach the
“good cause” threshold, and we therefore review only his constitutional right to counsel claim.
3
Case: 11-15973 Date Filed: 11/13/2012 Page: 4 of 13
substitute counsel on April 1, 2011 and July 5, 2011,2 and denying defense
counsel’s motion to withdraw on July 5, 2011. The record does not indicate that
Evans ever appealed the magistrate judge’s ruling to the district court within the
mandated fourteen-day window. We are therefore without jurisdiction to decide
this issue, as it is an appeal directly from a magistrate judge’s order, and we
dismiss this portion of Evans’s appeal. See Schultz, 565 F.3d at 1362.
II.
Evans next argues that the district court abused its discretion in denying his
motion for a continuance of trial, where defense counsel had not subpoenaed trial
witnesses because she anticipated Evans would plead guilty. Evans contends that
the district court’s error denied his counsel an adequate opportunity to prepare for
trial and to call witnesses necessary for the presentation of his defense, which in
turn violated his rights to due process, compulsory process, and a fair trial.
We review the denial of a motion for continuance for abuse of discretion.
United States v. Valladares, 544 F.3d 1257, 1261 (11th Cir. 2008) (per curiam).
To demonstrate that a district court abused its discretion, a defendant “must show
that the denial . . . resulted in specific substantial prejudice.” United States v.
2
Evans’s second request for substitute counsel was not an official motion, but rather a
signed written statement dated June 29, 2011, which was incorporated by reference into his
attorney’s motion to withdraw.
4
Case: 11-15973 Date Filed: 11/13/2012 Page: 5 of 13
Verderame, 51 F.3d 249, 251 (11th Cir. 1995). “To make such a showing, [the
defendant] must identify relevant, non-cumulative evidence that would have been
presented if his request for a continuance had been granted.” United States v.
Saget, 991 F.2d 702, 708 (11th Cir. 1993). “In the absence of any proffer of
additional evidence that would have been presented” had the continuance been
granted, there is no specific or substantial prejudice arising from the denial of the
motion for continuance. Id.
In certain limited circumstances, the denial of a request for a continuance
may rise to the level of violating a defendant’s right to due process. See Ungar v.
Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 849 (1964); United States v. Baker, 432
F.3d 1189, 1248 (11th Cir. 2005). However, such violations must be determined
on a case-by-case basis, based on the totality of the circumstances, with particular
consideration given to “the reasons presented to the trial judge at the time the
request is denied.” Ungar, 376 U.S. at 589. Although “a mypoic insistence upon
expeditiousness in the face of a justifiable request for delay can render the right to
defend with counsel an empty formality,” not every denial of a request for a
continuance violates due process, “even if the party fails to offer evidence or is
compelled to defend without counsel.” Id.
In particular, when a movant claims that a continuance is necessary in order
5
Case: 11-15973 Date Filed: 11/13/2012 Page: 6 of 13
to secure the presence of potential witnesses, the movant “must show that due
diligence has been exercised to obtain the attendance of the witness, that
substantial favorable testimony would be tendered by the witness, that the
witnesses is available and willing to testify, and that the denial of a continuance
would materially prejudice” the movant. United States v. Uptain, 531 F.2d 1281,
1287 (5th Cir. 1976)3; see also United States v. Darby, 744 F.2d 1508, 1521 n.6
(11th Cir. 1984) (applying Uptain to determine whether a district court violated a
defendant’s due process rights in denying a continuance). When assessing claims
of inadequate preparation, relevant factors include: (1) the amount of time
available for preparation; (2) the likelihood of prejudice from denial; (3) the
accused’s role in shortening the effective preparation time; (4) the degree of
complexity of the case; (5) the availability of discovery from the prosecution; (6)
the adequacy of the defense actually provided at trial; (7) the skill and experience
of the attorney; (8) any pre-appointment or pre-retention experience of the attorney
with the accused; and (9) any representation of the defendant by other attorneys
that accrued to his benefit. Uptain, 531 F.2d at 1286–87; Darby, 744 F.2d at
1522.
3
The Eleventh Circuit has adopted as binding precedent all decisions of the former Fifth
Circuit rendered before October 1, 1981. Bonner v. City of Prichard, 661 F. 2d 1206, 1209 (11th
Cir. 1981) (en banc).
6
Case: 11-15973 Date Filed: 11/13/2012 Page: 7 of 13
Here, Evans has not established that the district court’s denial of his request
for a continuance rises to the level of a due process violation. Moreover, he has
not proffered any relevant, non-cumulative evidence that he would have presented,
had the continuance been granted, rising to the level of specific substantial
prejudice. During the July 11, 2011 hearing before the district court—at which
Evans reneged on the plea agreement that he signed on July 8, 2011—Evans only
cited two reasons for his continuance request: (1) defense counsel’s receipt of new
discovery from the prosecution during the preceding few days; and (2) his need to
subpoena witnesses in light of his decision earlier that morning, during the same
hearing, not to enter into the plea agreement.
During the district court’s colloquy, however, it became clear that the “new”
discovery was merely an audio recording of an interview and its accompanying
transcript, the substance of which had been recounted in a report already provided
to Evans earlier in discovery. Further, Evans himself was the cause of defense
counsel’s failure to subpoena witnesses, given his eleventh-hour decision not to
enter into the plea agreement he had signed just three days earlier. Evans also
failed to specify what witnesses he would call or what relevant, “substantial
favorable testimony would be tendered.” See Uptain, 531 F.2d at 1287.
Moreover, during the colloquy, the district court explicitly considered the
7
Case: 11-15973 Date Filed: 11/13/2012 Page: 8 of 13
fact that the case was “in its seventh month” already; that there had been previous
delays for a magistrate judge to address Evans’s issues with his counsel and
equivocations between proceeding pro se and being represented by appointed
counsel; and that the district court had “gone to some effort,” because of the
summer schedule, to secure a jury to appear early the next morning in order to
begin trial. The district court also discussed the lack of complexity of the case, as
well as defense counsel’s competent representation of Evans to date.
Based on the record, it is clear that the district court gave particular
consideration to defense counsel’s specified reasons for requesting a continuance.
See Ungar, 376 U.S. at 589. The district court’s consideration of the amount of
time available for preparation, the likelihood of prejudice from denial, Evans’s
role in shortening the effective preparation time, the degree of complexity of the
case, the alleged “new” discovery from the prosecution, and the skill and
experience of defense counsel clearly illustrate that it did not abuse its discretion
in denying Evans’s request for a continuance.
III.
Finally, Evans argues that the district court abused its discretion when it
refused to conduct a Rule 11 plea colloquy after denying his motion for a
continuance, thereby violating his “statutory right to plead guilty.” Evans
8
Case: 11-15973 Date Filed: 11/13/2012 Page: 9 of 13
contends that the district court should have at least attempted a Rule 11 plea
colloquy before it decided whether his guilty plea was knowing and voluntary,
particularly because he had already signed a written plea agreement.
This Court ordinarily reviews a district court’s decision to reject a guilty
plea for abuse of discretion. United States v. Gomez-Gomez, 822 F.2d 1008, 1010
(11th Cir. 1987) (citing Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495,
498 (1971)). However, where a defendant fails to object below to the district
court’s rejection of the guilty plea, this Court reviews for plain error. United
States v. Moriarty, 429 F.3d 1012, 1018 (11th Cir. 2005) (per curiam).
Under plain error review, the defendant must show: (1) there was an error in
the district court’s determination; (2) the error was plain or obvious; (3) the error
affects the defendant’s substantial rights; and (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings. United States v.
Clark, 274 F.3d 1325, 1326 (11th Cir. 2001) (per curiam). To show that an error
affected substantial rights, the defendant must show that the error “affected the
outcome of the district court proceedings.” United States v. Rodriguez, 398 F.3d
1291, 1299 (11th Cir. 2005) (quotation marks omitted). However, “[w]hen neither
the [United States] Supreme Court nor this Court has resolved an issue, and other
circuits are split on it, there can be no plain error in regard to that issue.”
9
Case: 11-15973 Date Filed: 11/13/2012 Page: 10 of 13
Moriarty, 429 F.3d at 1019 (citing United States v. Aguillard, 217 F.3d 1319,
1321 (11th Cir. 2000) (per curiam)).
Pursuant to Rule 11, “[a] defendant may plead not guilty, guilty, or (with the
court’s consent) nolo contendre.” Fed. R. Crim. P. 11(a)(1). Before accepting a
guilty plea, “the court must address the defendant personally in open court and
determine that the plea is voluntary and did not result from force, threats, or
promises (other than promises in a plea agreement).” Fed. R. Crim. P. 11(b)(2).
The defendant, however, has “no absolute right to have a guilty plea accepted,”
and “[a] court may reject a plea in exercise of sound judicial discretion.”
Santobello, 404 U.S. at 262.
Because Evans did not object below to the district court’s refusal to accept
his guilty plea, or its failure to conduct a Rule 11 plea colloquy, we review the
district court’s decision for plain error.4 See Moriarty, 429 F.3d at 1018–19. In
4
This Court has not yet addressed whether the abuse of discretion standard of review
would apply for a district court’s failure to conduct a Rule 11 plea colloquy in the face of the
defendant’s objection below to preserve the issue for appellate review. However, because Evans
failed to object to the district court’s ruling, this Court need only review the decision for plain
error. Nevertheless, we do note the following:
To the extent that the district judge thus exposes the defendant’s state of mind on the
record through personal interrogation, he not only facilitates his own determination
of a guilty plea’s voluntariness, but he also facilitates that determination in any
subsequent post-conviction proceeding . . . . Both of these goals are undermined in
proportion to the degree the district judge resorts to “assumptions” not based upon
recorded responses to his inquiries.
McCarthy v. United States, 394 U.S. 459, 467, 89 S. Ct. 1166, 1171 (1969) (citing an earlier
10
Case: 11-15973 Date Filed: 11/13/2012 Page: 11 of 13
this case, the district court’s determination was not plain or obvious error.
Contrary to Evans’s claims, neither the United States Supreme Court nor this
Court has ever established the existence of a “statutory right to attempt to plead
guilty.” While Rule 11 covers the “core principles” that the district court must
address during a plea colloquy in order to satisfy due process and ensure that the
defendant is aware of the waiver of constitutional rights attendant to a guilty plea,
Moriaty, 429 F.3d at 1019, the rule does not address or explain the procedures that
a district court must follow when it considers whether to allow a defendant to
enter a guilty plea.
Moreover, we have consistently conferred broad discretion upon district
courts to reject guilty pleas. See United States v. Bean, 564 F.2d 700, 702 (5th
Cir. 1977) (stating that while a former version of Rule 11 “provide[s] guidelines
for [the] plea bargaining procedure, the Rule does not contravene a judge’s
discretion to reject such a plea” (footnote omitted)). We have also held that “the
prerogative of prosecutors and defendants to negotiate guilty pleas is ‘outweighed
by judicial discretion to control the scheduling of trial procedures in ongoing
prosecutions, plus the broad interests of docket control and effective utilization of
jurors and witnesses.’” United States v. Gamboa, 166 F.3d 1327, 1331 (11th Cir.
version of Rule 11).
11
Case: 11-15973 Date Filed: 11/13/2012 Page: 12 of 13
1999) (quoting United States v. Ellis, 547 F.2d 863, 868 (5th Cir. 1977)).
Here, the district court rejected Evans’s guilty plea based upon the plea’s
questionable voluntariness, particularly because Evans had already changed his
mind about pleading guilty multiple times during that same hearing. The district
court highlighted its apprehension that “if [Evans] were to [change his plea], he
would later say that he was compelled,” and that it “wouldn’t have much
confidence in [Evans] that he genuinely wants to change his plea.”
The district court also cited the interests of judicial expediency,
emphasizing its repeated attempts “to accommodate” Evans and postpone the
district court proceedings while Evans was “in and out of the magistrate judge’s
court” addressing his issues with his attorney and equivocating between
proceeding pro se or with appointed counsel. These concerns, coupled with the
district court’s acknowledgment that it had “gone to some effort” to secure a jury
to begin trial, are legitimate considerations and indicate a valid exercise of
“judicial discretion to control the scheduling of trial procedures in ongoing
prosecutions,” as well as “the broad interests of docket control and effective
utilization of jurors.” See Gamboa, 166 F.3d at 1331. In sum, the district court’s
failure to conduct a Rule 11 colloquy before rejecting Evans’s guilty plea did not
rise to the level of plain error.
12
Case: 11-15973 Date Filed: 11/13/2012 Page: 13 of 13
DISMISSED IN PART; AFFIRMED IN PART.
13