United States v. Maldonado

United States Court of Appeals
For the First Circuit

No. 12-1012

UNITED STATES,

Appellee,

v.

JOSE LUIS MALDONADO,
a/k/a Edward de Jesus Meija Nunez,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

Thompson, Selya, and Lipez,
Circuit Judges.

John F. Cicilline for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, was on brief, for
appellee.

February 13, 2013
 THOMPSON, Circuit Judge.

Backdrop

On an April morning in 2009, federal agents armed with a

warrant searched suspected drug dealer Jose Maldonado and his

apartment in Warwick, Rhode Island. They found plenty, coming up

with bags of crack and powdered cocaine, over $6,500 in cash, a

digital scale, and a driver's license indicating that he lived in

nearby Cranston. Arrested and Mirandized, Maldonado talked to

agents at the scene – telling them how much the crack taken from

his jacket pocket weighed, describing the digital scale, and

explaining how he ran his drug business from Warwick to shield his

family in Cranston from the dangers associated with his line of

work. Agents then asked for and received Maldonado's consent to

search his Cranston home. And during that search they found

pistols, ammunition, heroin, digital scales, drug presses, and

materials that are mixed with crack and heroin in preparing them

for sale at retail.

Later that day, Maldonado gave a tape-recorded

confession, saying that he had been dealing drugs for about a year,

that he had cooked the crack cocaine himself, and that the pistols

were his. Agents then turned off the recorder, satisfied that they

had gotten what they needed and ready to start the next phase of

the investigation. But Maldonado kept talking, saying that he had

actually been selling drugs for about eight years and that he would

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usually buy about a kilogram of cocaine every two weeks for $33,000

a pop. He also gave up some details about his drug sources.

Searching Maldonado's car the next day (a search done

pursuant to a warrant, by the way), agents spotted a secret

compartment behind the dashboard. In it they found more crack

cocaine, powdered cocaine, and heroin.

Eventually charged in a multicount indictment with drug

and weapons offenses, Maldonado pled not guilty and later moved

unsuccessfully to suppress the evidence seized at the Warwick and

Cranston locales. After many unusual twists and turns (more on

this in a moment), a jury convicted him on all counts. The

district judge denied his new-trial motion without an evidentiary

hearing and sentenced him to a total of 181 months in prison plus

5 years of supervised release. Maldonado now appeals his

convictions, but not his sentence, raising a slew of issues for our

review. None carries the day, as we shall see.

Issues and Rulings

Maldonado's leadoff argument is that the district judge

deprived him of his Sixth Amendment right to choose his own

counsel. To put that issue in context, we must go a little deeper

into the facts.

After Maldonado's arrest, the district court appointed an

assistant federal public defender named Kevin Fitzgerald to

represent him. Four months later, Maldonado retained private

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counsel, Steven DiLibero, and Fitzgerald withdrew from the case.

About three months after that, DiLibero withdrew, and court-

appointed counsel Robert Mann took over. Mann stayed on for nine

months, withdrawing after Maldonado hired attorneys Robert Watt and

Jose Espinosa. For those keeping track, that makes five lawyers

for Maldonado in a little over a year. And while we are tossing

around numbers, by the time his trial was set to start, Maldonado

had asked for and received nine separate continuances, resulting in

months and months of delays.

On what was supposed to be the first day of trial, the

jurors, witnesses, and lawyers arrived at the courthouse bright and

early. But Maldonado threw a monkey wrench into the proceedings by

refusing to leave his cell. After talking with counsel, the

district judge asked Watt and Espinosa to go meet with Maldonado in

prison.

During a telephone conference held later that day, Watt

and Espinosa (reporting from a prison conference room) explained

that Maldonado had said that he did not want them representing him

and that John Cicilline was now his lawyer. Answering a question

from the judge, Espinosa stressed that he believed Maldonado was

competent to stand trial. Maldonado joined Watt and Espinosa at

some point and told the judge that, yes, neither Watt nor Espinosa

was his attorney. "You have attempted to manipulate the Court on

past occasions," the judge stressed, and "I cannot allow you to

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disrupt the proceeding and to insult the dignity of this judicial

process . . . ." But Watt and Espinosa are "incompetent,"

Maldonado fired back. "I don't want them, period." The duo, the

judge said, "are very skilled" lawyers who are "doing everything

that they can do in your interest, even though you are making it

very difficult for them." And, the judge reminded Maldonado,

"Cicilline has not entered this case on your behalf," so "[h]e is

not your attorney as far as the Court is concerned." Clearly

agitated, Maldonado demanded that he be taken back to his cell.

Speaking with those who remained, the judge called

Maldonado's attempted firing of counsel a "subterfuge" intended to

"undermine these proceedings." "It's not a sincere dismissal," the

judge found, and he suggested that the trial go forward with Watt

and Espinosa as counsel. The assistant United States attorney

prosecuting the case agreed, and so did Espinosa, who announced

that he was ready, willing, and able to defend Maldonado. But

because Maldonado would not leave his cell – to make things more

difficult, he had taken off his clothes after getting off the

teleconference – the judge sent the jury home for the day.

At a chambers conference the next morning, the judge

disclosed that federal marshals had reported that Maldonado had

spread his own feces and urine over his body in a bid to keep them

from taking him to court. Marshals tried to get him to court later

that day. But he put up a fight, and he ended up needing some

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medical attention for a broken nose. So the judge sent the jury

home for a second time. Cicilline then put on the record that he

had told Maldonado that he would not enter an appearance in the

case unless the judge granted a one-month continuance, and the

judge explained that he would not grant a one-month continuance –

particularly given that the jury was "in the box" and Maldonado had

run through multiple attorneys already. "[T]he record is now

replete" with examples of Maldonado's "resistence," the judge

found, adding that "all of the conduct, frankly, has been designed

towards obstruction."

The following day, Maldonado finally appeared in court.

Espinosa told the judge that Maldonado wanted him to pursue certain

trial strategies that he (Espinosa) thought inappropriate. And,

Espinosa added, Maldonado made no bones about the fact that he

wanted Cicilline to represent him. Maldonado told the judge that

he respected Watt and Espinosa, but he criticized them for not

doing two things, principally: asking the court to suppress his

statements to police (he faulted the police for not having a

Spanish-speaking officer present), and challenging a prospective

juror whose husband worked for the Rhode Island State Police,

though he was not a trooper, apparently. Speaking up, Espinosa

said that Maldonado also faulted him and Watt for not subpoenaing

to a suppression hearing the state judge who had purportedly signed

the search warrant (Maldonado believed that someone else had signed

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the judge's name on that document). And he explained the reasoning

behind their decisions. On the juror issue, for example, Espinosa

stressed that he had been down to his last peremptory, that the

prospective juror whom Maldonado had fixated on had proven her

honesty and had shown that she would keep an open mind, and that

another person needed to be stricken. Espinosa spoke to the other

issues too. But that portion of the transcript is sealed, and,

based on our review of the record (e.g., the transcript order

form), we see that Maldonado never had that part transcribed. See

generally Fed. R. App. P. 10(b)(1)(A), (c) (requiring an appellant

to procure the "transcript of such parts of the proceedings . . .

as the appellant considers necessary" or, if no transcript is

available, to "prepare a statement . . . of the proceedings from

the best available means, including appellant's recollection");

Real v. Hogan, 828 F.2d 58, 60 (1st Cir. 1987) (explaining that "it

is the appellant who must bear the brunt of an insufficient record

on appeal"). Anyway, having taken it all in, the judge found no

merit in any of the matters Maldonado had asked Watt and Espinosa

to raise and no reason to grant an eve-of-trial continuance so yet

another lawyer could take over. Consequently, the judge gave

Maldonado two choices: continue with Watt and Espinosa (who were

doing an "excellent" job, the judge said) or represent himself.

In a last-ditch effort to avoid trial, Maldonado claimed

that he suffers from and receives treatment for schizophrenia. He

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asked Espinosa to ask the judge for a mental-health evaluation, and

Espinosa obliged. But having observed Maldonado firsthand and

heard counsel say that Maldonado was competent, the judge found

that this was just another delay tactic and ruled that the trial

would go forward – and it did, with Watt and Espinosa representing

Maldonado.

With this background in place, we take on Maldonado's

perceived counsel-of-choice problem. First, though, we should say

that the government insists that Maldonado forfeited this issue by

not developing it adequately below, meaning it is reviewable only

for plain error – or so the government argues. But because

Maldonado's claim is clearly meritless, we can and do bypass the

government's forfeiture theory. See, e.g., United States v. Henry,

482 F.3d 27, 32 (1st Cir. 2007) (taking that tack in a similar

situation); United States v. McIntosh, 380 F.3d 548, 555 (1st Cir.

2004) (same).

"In all criminal prosecutions," the Sixth Amendment

declares, "the accused shall enjoy the right . . . to have the

Assistance of Counsel for his defence." U.S. Const. amend. VI.

That, of course, includes the right to retain counsel of one's

choosing. See, e.g., United States v. Gonzalez-Lopez, 548 U.S.

140, 144 (2006); United States v. Gaffney, 469 F.3d 211, 216 (1st

Cir. 2006). But as important as that right is, it is not absolute.

See, e.g., Wheat v. United States, 486 U.S. 153, 159 (1988);

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Gaffney, 469 F.3d at 216.1 It must be balanced against the judge's

need to ensure the orderly progress of the trial, for example.

See, e.g., Gaffney, 469 F.3d at 216; United States v. Woodard, 291

F.3d 95, 106 (1st Cir. 2002). And ultimately, a defendant's right

to select his own counsel "cannot be insisted upon in a manner that

will obstruct reasonable and orderly court procedure." United

States v. Neal, 36 F.3d 1190, 1205-06 (1st Cir. 1994) (internal

quotation marks omitted).

Now, trial judges are busy people, obviously, operating

under extreme pressure to manage exploding dockets fairly and

efficiently. See, e.g., United States v. Saccoccia, 58 F.3d 754,

770 (1st Cir. 1995). Necessarily, then, they must have "broad

discretion" to control their calendars by granting or denying

continuance motions – and because they do, "only an unreasoning and

arbitrary insistence upon expeditiousness in the face of a

justifiable request for delay violates the right to the assistance

of counsel." See Morris v. Slappy, 461 U.S. 1, 11-12 (1983)

(internal quotation marks omitted). It surely goes without saying

– but we say it anyway – that our review is for abuse of

discretion, see, e.g., United States v. DeCologero, 530 F.3d 36,

78-79 (1st Cir. 2008), which occurs if no reasonable person could

1
See also United States v. Proctor, 166 F.3d 396, 402 (1st
Cir. 1999) (noting that, in the right situation, a district judge
may make a defendant pick between going "to trial with an unwanted
attorney and representing himself").

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agree with the judge's ruling, see Hutchinson ex rel. Julien v.

Patrick, 636 F.3d 1, 15 (1st Cir. 2011). Also and importantly, to

win here, the party denied the continuance must show that the

judge's decision caused specific, "substantial prejudice."

Saccoccia, 58 F.3d at 770.

Moving from the general to the particular, Maldonado

complains that the judge kept his preferred attorney, Cicilline,

from representing him, which, he contends, robbed him of his

constitutional right to chosen counsel. He could not be more

wrong. With jurors, witnesses, and lawyers (the prosecutor, plus

Watt and Espinosa) ready to go, the judge made it crystal clear

that Cicilline could enter his appearance but that the trial would

proceed as planned, noting (among other things) that Maldonado had

already received nine continuances and had gone through three

attorneys before hiring Watt and Espinosa (his fourth and fifth

lawyers). And it was Cicilline who balked at entering the case on

those terms. Critically, nothing in the Sixth Amendment gave

Maldonado the right to insist on the one-month continuance that

Cicilline demanded as a precondition for his entry – at least

Maldonado cites no case, and we know of none, that holds otherwise.

Cutting to the chase, we see no hint of an abuse of

discretion here. Again, the continuance request came on the day

set for the trial to begin – after the court had granted not one,

not two, but nine continuances (as we have said, with tireless

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repetition), delaying matters for months on end.2 The jury had

already been picked. Witnesses and lawyers (the prosecutor and the

Watt/Espinosa tandem) had arranged their schedules to be there.3

So had the judge. But Maldonado took a defiant stance, pulling out

all the stops to jam-up the proceedings. Recall how he had smeared

his bodily waste on himself and had brawled with marshals. Recall

also how the judge – having lived with the case for some time (so

he knew the protagonists fairly well) and having held multiple

conferences to sort out this sorry tangle – expressly found that

Maldonado's day-of-trial bid to switch out Watt and Espinosa for

Cicilline was nothing but obstructionism. And recall too how

Maldonado's desperate attempt to game the system had caused the

2
See, e.g., DeCologero, 530 F.3d at 79 n.27 (calling a
continuance motion made on the first day of trial "untimely");
United States v. Rodriguez-Marrero, 390 F.3d 1, 22 (1st Cir. 2004)
(similar for a motion made the day before trial); Neal, 36 F.3d at
1205-06 (ditto for a motion made ten days before trial); see also
United States v. Ademaj, 170 F.3d 58, 64-65 (1st Cir. 1999)
(calling a challenge to a continuance motion made on the first day
of trial (after there had been "a nine-month delay resulting from
five previous continuances") "frivolous").
3
See, e.g., Morris, 461 U.S. at 11 (holding that
inconvenience to jurors, witnesses, and lawyers is a key factor for
judge's deciding continuance motions in the counsel-of-choice
context); United States v. Gaya, 647 F.3d 634, 636 (7th Cir. 2011)
(Posner, J.) (noting that granting a continuance "after a jury is
picked would, by marooning the jury, enable a defendant unhappy
with that jury to try his luck with a new one," since the time
needed for him to get his new counsel "up to speed would be too
great for the original jury to be kept waiting for trial to
begin").

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judge to send jurors and witnesses home two days in a row.4 Sure,

as a newcomer to the case, Cicilline no doubt had his reasons for

wanting a 30-day continuance (as opposed to a shorter term), though

he did not spell them out on the record before the judge ruled.

But having measured that request against the appropriate factors –

including the lateness of the plea, the amount of time previously

available for preparation (thanks to nine other previously-granted

continuances), the extent to which Maldonado's own actions caused

his claimed predicament, the inconvenience to others should another

continuance follow, and the availability of assistance from Watt

and Espinosa – the judge was justified in drawing a line in the

sand. Cf. Saccoccia, 58 F.3d at 770-71 (discussing the balancing

of factors).

On top of that, Maldonado makes no showing of specific

and compelling prejudice necessary to win here. He vaguely

suggests that his pined-for sixth attorney (Cicilline) would have

pursued different pretrial strategies – moving to suppress his

incriminating statements, disputing the authenticity of the state

judge's signature on the search warrant, striking a different

potential juror. But he does not persuade us that these hinted-at

maneuvers had any realistic prospect of success, let alone that

4
See, e.g., Gaffney, 469 F.3d at 216 (stressing that a
defendant cannot use the right to counsel as a means to manipulate
the court "or hamper the prosecution") (internal quotation marks
omitted); Woodard, 291 F.3d at 106 (similar).

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they could in any way have affected the verdict, so his argument

fails. See, e.g., id. at 771 (rejecting a defendant's prejudice

theory because it lacked "any colorable basis for assuming that his

supposition was anything more than the most remote of

possibilities").

Given this concatenation of circumstances, we cannot say

that the judge acted in an unreasoning and arbitrary way.

Undaunted, Maldonado spends some time discussing United States v.

Allen, 789 F.2d 90 (1st Cir. 1986) – too much time, actually.

Allen outlines factors relevant in reviewing denied motions to

replace appointed counsel. Id. at 92. The catalog includes the

timeliness of the substitution motion; the adequacy of the judge's

inquiry into why the attorney-client relationship supposedly

soured; and whether their beef was so profound that it caused a

"total" breakdown in communication, preventing counsel from

effectively presenting an "adequate defense." Id. Abuse-of-

discretion review applies to that issue too. Id.

Though he tries mightily, Maldonado can get no mileage

from Allen. For starters, we have our doubts about whether the

Allen factors apply in cases like this one involving privately-

retained counsel. See Woodard, 291 F.3d at 107 (raising that very

question and explaining why the Allen factors may not be a good fit

for this situation). But we need not resolve them, because even

assuming that the Allen test holds sway here, Maldonado has not

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shown any reversible error, given the events described above:

Again, his effort to jettison Watt and Espinosa came too late in

the day. Also, the judge conducted a thorough and thoughtful

inquiry. See, e.g., Woodard, 291 F.3d at 108 (noting that "[t]he

extent and nature of the inquiry may vary in each case; it need not

amount to a formal hearing"). Finally, regarding the nature of the

alleged conflict between counsel and client, Maldonado basically

says that he had lost trust in team Watt/Espinosa. But that, by

itself, is not sufficient, as he candidly admits – instead, the

defendant must offer up a "legitimate reason for his loss of

confidence." Id.; see also United States v. Myers, 294 F.3d 203,

206 (1st Cir. 2002) (adding that "[g]ood cause depends on objective

reasonableness; it cannot be gauged solely by ascertaining the

defendant's state of mind"). And this is where he gets tripped up.

True, he blasts his lawyers for not doing what he says they should

have done – seeking to suppress his damning statements, contesting

the state judge's signature on the warrant, and using the final

peremptory challenge differently. Remember, though, that Espinosa

explained the thinking behind his and Watt's approach (partly

during a sealed sidebar) – explanations that the judge accepted,

finding that Maldonado's complaints "don't have any real merit."

And that dooms Maldonado's Allen-based argument, given that counsel

is not required "to pursue weak options when it appears, in light

of informed professional judgment, that a defense is implausible or

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insubstantial." Woodard, 291 F.3d at 108 (internal quotation marks

omitted).

The bottom line is that we see no reason to second-guess

the judge's decision on the choice-of-counsel issue. So we soldier

on.

Next up is Maldonado's claim that the judge slipped in

finding him competent for trial without first ordering a

psychiatric exam. To succeed, Maldonado must show facts that

create "a real, substantial and legitimate doubt" about his

competency. United States v. Brown, 669 F.3d 10, 17 (1st Cir.

2012) (internal quotation marks omitted). Reviewing the judge's

findings, we see nothing resembling an abuse of discretion, which

is the standard that applies when a judge denies a request for a

competency evaluation, see United States v. Maryea, No. 11-2239,

2013 WL 150316, at *11 (1st Cir. Jan. 15, 2013). We explain

briefly.

Competency here requires that the defendant have the

ability both to comprehend the nature of the proceedings and to

assist counsel in preparing his defense. See, e.g., Dusky v.

United States, 362 U.S. 402, 402 (1960); United States v. Widi, 684

F.3d 216, 220-21 (1st Cir. 2012) (noting that "[a] defendant may

have serious mental illness while still being able to understand

the proceedings and rationally assist his counsel"). With that in

mind, we have good reasons to leave the judge's competency decision

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alone. For one thing, Maldonado's own privately-selected lawyer

(Espinosa) considered Maldonado competent – something that carries

"great weight" with us, given "counsel's unique vantage." Widi,

684 F.3d at 220 (internal quotation marks omitted); see also Brown,

669 F.3d at 17. For another, the judge got to see and hear

Maldonado firsthand (they interacted quite a bit, the reader will

recall), and Maldonado was hardly incoherent (as a review of the

transcripts confirms) – a factor that also supports the judge's

ruling. See, e.g., Widi, 684 F.3d at 220; United States v.

Sanchez-Ramirez, 570 F.3d 75, 81 (1st Cir. 2009). Also, the record

reveals that Maldonado had no trouble consulting with and assisting

counsel at different stages – yet one more consideration showing

that his incompetency theory will not fly.5 See, e.g., Brown, 669

F.3d at 17-18.

Searching for a way around all this, Maldonado again

talks about the time that he covered himself with feces and urine.

Only a plainly incompetent person would have done that, he

suggests. But as the judge supportably found, that was just

5
Given the stunts that Maldonado had pulled, the judge
purposely kept a close eye on him during court proceedings. And "I
have to say," the judge later said, "that I never at any time
observed anything to give me the slightest bit of concern about
[his] ability to participate effectively in his own defense with
counsel." Actually, "there were many, many times when [Maldonado]
was communicating with trial counsel," the judge added, showing
that "he was more than fully engaged" as events played out.

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another desperate ploy to avoid trial. So it does not change our

conclusion.

Neither does his complaint that his lawyers should have

gotten his psychiatric records from a community-health center –

records that he says would have shown his unfitness for trial.

This is really a claim that his attorneys provided ineffective

assistance, which typically requires a showing that counsel

performed deficiently and prejudiced the outcome of the case. See,

e.g., Strickland v. Washington, 466 U.S. 668, 687 (1984). And that

is a problem for Maldonado, because our practice is not to review

ineffective-assistance claims on direct appeal, except in the rare

instance when the record is sufficiently developed for us to weigh

in. See United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993)

(laying out the rationale for this practice in exquisite detail).

Maldonado's claim falls within the general rule, not the seldom-

seen exception to it, given that we do not know for sure why

counsel did what they did, for example. See United States v.

Moran, 393 F.3d 1, 10-11 (1st Cir. 2004) (finding an ineffective-

assistance claim pressed on direct appeal premature because it was

impossible to tell whether counsel's decision was strategic or an

oversight). The upshot is that if Maldonado wants to pursue this

claim, he must do so by filing a motion under 28 U.S.C. § 2255.

See Mala, 7 F.3d at 1063 (holding that when the lower-court record

is too skimpy to be helpful, "we have routinely dismissed the

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relevant portion of the appeal without prejudice to the defendant's

right to litigate his ineffective assistance claim through the

medium of an application for post-conviction relief"); see also

United States v. Guerrier, 669 F.3d 1, 9 (1st Cir. 2011) (similar,

collecting additional cases).

The same is true for four of his other claims. The first

three should be familiar to the reader by now: his knocking

counsel for not moving to suppress his incriminating comments, not

questioning the genuineness of the state judge's signature on the

warrant, and not using the last peremptory strike against another

potential juror. The fourth concerns his claim that he did not

testify at trial because of counsel's bad advice (they had a warped

view of the evidence, he says) – advice given when (he says) he was

too affected by prescription drugs to make a wise choice. These

claims are actually ineffective-assistance claims. And here too

there are too many unknowns to permit meaningful review – unknowns

like what motivated counsel to make the choices that they made

(Espinosa offered rationales for the tack he and Watt took, but

some of that happened during a sealed sidebar), and who said what

to whom and when, and what state Maldonado was really in when it

mattered, and (assuming errors in the defense) whether there is a

reasonable probability of a different result. We reject these

claims, then, though he can renew them (if he wishes) in a § 2255

petition. See, e.g., Mala, 7 F.3d at 1063.

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 Which brings us to Maldonado's last issue, whether the

judge stumbled in denying his new-trial motion – a question we

review for abuse of discretion.6 See, e.g., United States v. Hall,

557 F.3d 15, 19 (1st Cir. 2009). Stripped to its essentials, his

new-trial theory is little more than a repackaging of his counsel-

of-choice, competency, and judicial-signature arguments that we

already have brushed aside. Given this, we cannot say that the

judge abused his discretion here.7 See, e.g., United States v.

Kelly, 722 F.2d 873, 882 (1st Cir. 1983) (holding that because

"[t]he grounds for this [new-trial] motion were mainly the same

contentions already discussed" and rejected, the judge did not

"abuse [her] discretion in denying defendant's" new-trial request).

Conclusion

Our review over, we affirm the judgment below but without

prejudice to Maldonado's right to raise his ineffective-assistance

claims (if he so chooses) in a § 2255 petition. Naturally, we take

no position on how a petition like that might fare.

6
The government suggests that Maldonado may have filed his
new-trial motion beyond the limits set in Fed. R. Crim. P.
33(b)(2). But, commendably, the government also says that we
should skip over the timeliness issue because prosecutors did not
raise that concern below, and so we shall. See generally United
States v. Alverio-Meléndez, 640 F.3d 412, 423 n.6 (1st Cir. 2011)
(bypassing a timeliness argument because the new-trial arguments
failed "on the merits").
7
Maldonado criticizes the judge for not holding an
evidentiary hearing on his new-trial motion. But he does not
seriously develop that argument, offering us no authority for it,
so we deem it waived. See, e.g., United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).

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