United States v. McCutcheon

United States Court of Appeals,

Eleventh Circuit.

No. 94-4846.

UNITED STATES of America, Plaintiff-Appellee,

v.

Todd McCUTCHEON, a/k/a "Todd Smith," a/k/a "Latralle Rene Smith,"
Defendant-Appellant.

June 20, 1996.

Appeal from the United States District Court for the Southern
District of Florida. (Nos. 91-6106, 6107-CR-NCR), Norman C.
Roettger, Jr.

Before TJOFLAT, Chief Judge, and RONEY and PHILLIPS*, Senior
Circuit Judges.

PER CURIAM:

Todd McCutcheon seeks reversal of his cocaine convictions (21

U.S.C. §§ 841(a)(1), 846) on two arguments:

First, The trial court erred by summarily disqualifying the

his initial counsel of choice;

Second, the trial court erroneously refused to dismiss the

indictments under the Speedy Trial Act. Finding no abuse of

discretion on the first issue and the law against the defendant on

the second, we affirm.

1. Disqualification of Counsel

The procedural history of this case need not be recited here

since it is well-known to the parties who are not in conflict on

the basic trial history. Todd McCutcheon was arraigned on June 4,

1991, in two cases involving crack cocaine: distribution on

*
Honorable J. Dickson Phillips, Jr., Senior U.S. Circuit
Judge for the Fourth Circuit, sitting by designation.
December 14, 1989, and conspiracy and distribution with a

co-defendant, James Samuels, on January 24, 1990. After a lengthy

period of time, the cases were consolidated on McCutcheon's motion.

On July 12, 1993, the anticipated trial date, Peter Aiken,

McCutcheon's attorney, proffered for the first time an entrapment

defense that would inculpate Samuels. Samuels said that, in that

event, he would testify and contradict McCutcheon's entrapment

testimony. It was later disclosed to the court that Aiken had

represented Samuels in a crack cocaine case a few years ago, that

Samuels had confided to Aiken certain personal information

concerning his background, and that he would not waive any

privilege attendant to Aiken's prior representation. The district

court held that Aiken was disqualified and could not represent

McCutcheon in a trial of the co-defendants. It refused to sever

the trials. After McCutcheon obtained new counsel, the cases were

eventually severed because of conflicts in counsel's schedule.

McCutcheon's trial commenced on October 6, 1993. McCutcheon

asserted his entrapment defense and called witnesses. Samuels did

not testify in his trial. On October 19, the jury found defendant

guilty of all three counts.

The constitutional guarantee of counsel under the Sixth

Amendment has been construed to include four rights: the right to

counsel, Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158

(1932), the right to effective assistance of counsel, the right to

a preparation period sufficient to ensure a minimal level of

quality of counsel, and the right to be represented by counsel of

one's own choice. Glasser v. United States, 315 U.S. 60, 70, 62
S.Ct. 457, 465, 86 L.Ed. 680 (1942).

We note that there has been no issue raised concerning

effectiveness of defendant's trial counsel or concerning any other

error at trial for that matter. From all that appears in the

record before us, McCutcheon was fairly tried and properly

convicted. To the extent that his allegations of entrapment might

fit into the law of entrapment at all, the evidence was presented

to a properly instructed jury which rejected this defense. There

was no argument made that he did not in fact make the sales of

crack cocaine as alleged.

Therefore, the issue that counsel quite properly focuses on is

the fourth component of the right to counsel: the right to counsel

of choice. We have consistently held that while the right to

counsel is absolute, there is no absolute right to counsel of one's

own choice. United States v. Padilla-Martinez, 762 F.2d 942, 946

(11th Cir.) cert. denied, 474 U.S. 952, 106 S.Ct. 320, 88 L.Ed.2d

802 (1985). Any number of cases have held that the right to a

choice of counsel is subordinate to the requirements of the

efficient and orderly administration of justice.

There can be no doubt that Aiken's prior representation of

Samuels created an ethical conflict that would disqualify him from

cross-examining Samuels. There was clearly no abuse of discretion

in holding that Aiken was disqualified from representing McCutcheon

in a joint trial with Samuels. Judge Frank M. Johnson set forth

the settled law in this Circuit in United States v. Ross, 33 F.3d

1507, 1523 (11th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct.

2558, 132 L.Ed.2d 812 (1995).
 The need for fair, efficient, and orderly administration of
justice overcomes the right to counsel of choice where an
attorney has an actual conflict of interest, such as when he
has previously represented a person who will be called as a
witness against a current client at a criminal trial. See
United States v. Casiano, 929 F.2d 1046, 1052 (5th Cir.1991).
When an actual conflict of interest exists, the client is
denied effective assistance of counsel and the attorney may be
disqualified. United States v. Martinez, 630 F.2d 361, 362
(5th Cir.1980), cert. denied, 450 U.S. 922, 101 S.Ct. 1373, 67
L.Ed.2d 351 (1981). Indeed, even a potential conflict
suffices for disqualification. Wheat, 486 U.S. at 164, 108
S.Ct. at 1700 ("a showing of a serious potential for conflict'
overcomes presumption in favor of defendant's counsel of
choice).

Defendant argues that he sought to waive the conflict but the

trial court erroneously failed to consider a waiver. The Court

could not be faulted, however, under the broad discretion allowed

trial judges in such matters. Wheat v. United States, 486 U.S.

153, 163, 108 S.Ct. 1692, 1699, 100 L.Ed.2d 140 (1987) ("[W]e think

the district court must be allowed substantial latitude in refusing

waivers of conflicts of interest not only in those rare cases where

an actual conflict may be demonstrated before trial, but in more

common cases where the potential for conflict exists which may or

may not burgeon into an actual conflict as the trial progresses.").

Defendant's argument overlooks the fact that it is the ethical

responsibility to Samuels that also deserves protection, and that

Samuels refused to waive that conflict. Any time that there is an

attempt to waive vigorous representation of a criminal defendant,

there is always the possibility of laying a conviction open to an

ineffective assistance of counsel claim.

Defendant contends that if the district court had just

severed the trials as requested at the time the conflict appeared,

he would have been able to keep Aiken as his counsel. The standard
of review for refusal to grant a severance is abuse of discretion.

United States v. Macko, 994 F.2d 1526, 1536 (11th Cir.1993); see

United States v. Lopez, 898 F.2d 1505, 1510 (11th Cir.1990). A

review of the record reveals that, viewing the case as it appeared

to the trial judge at that time, there was no abuse of the broad

discretion which is allowed a trial court to manage its own docket.

This Court is always "reluctant to reverse a district court's

denial of severance, particularly in conspiracy cases, as generally

"persons who are charged together should also be tried together.'

" United States v. Knowles, 66 F.3d 1146, 1158 (11th Cir.1995),

cert. denied sub nom., --- U.S. ----, 116 S.Ct. 1449, 134 L.Ed.2d

568 (1996).

In any event, a separate trial would not have helped

defendant if Samuels were to testify in McCutcheon's trial and

whether Samuels testified might have turned upon who was tried

first. Criminal defendants cannot through choice of counsel

control the management of a trial court's docket. Absent

compelling reasons as to why defendant's choice of counsel should

be accommodated, there was no error in refusing to sever the trials

at the time that decision was made.

Although subsequent events might indicate it would have been

the better part of discretion to grant a severance, that does not

require the reversal of the defendant's conviction at a fair trial

with effective assistance of counsel. To show an abuse of the

district court's broad discretion, the defendant must show

compelling prejudice. United States v. Knowles, 66 F.3d 1146 (11th

Cir.1995); United States v. Frost, 61 F.3d 1518 (11th Cir.1995),
modified, 77 F.3d 1319 (11th Cir.1996); United States v. Strollar,

10 F.3d 1574 (11th Cir.). cert. denied, --- U.S. ----, 114 S.Ct.

2688, 129 L.Ed.2d 820 (1994).

Of course, because McCutcheon was eventually separately tried

for other reasons, any issue as to whether the alleged conflict

between McCutcheon and Samuels should have dictated a severance has

become moot. See United States v. Andrews, 765 F.2d 1491, 1498

(11th Cir.1985), cert. denied, 474 U.S. 1064, 106 S.Ct. 815, 88

L.Ed.2d 789 (1986) (compelling prejudice does not exist

automatically where one defendant asserts an entrapment defense at

a joint trial). But see United States v. Rucker, 915 F.2d 1511

(11th Cir.1990) (separate trials required when two defendants in

one car with drugs, each testifying that the drugs belonged to the

other).

2. Denial of Speedy Trial Dismissal

Although two years elapsed between McCutcheon's arraignment

and trial, his rights under the Speedy Trial Act, 18 U.S.C. § 3161,

et seq., were not violated. The issue turns on an argument over

the days excludable from the speedy trial computation. The Act

provides for a 70-day time limitation for the commencement of trial

after the filing of the indictment charging a defendant, or after

the later appearance before a judge or magistrate judge. The Act

in § 3161(h), however, contains numerous provisions for extension

of that time. The district court's factual determination as to

what constitutes excludable time is protected by the clearly

erroneous standard of review. United States v. Taylor, 487 U.S.

326, 337, 108 S.Ct. 2413, 2420, 101 L.Ed.2d 297 (1988).
 A review of the file and the arguments reveals that the

Government's brief correctly argues that under the law of this

Circuit, the district court properly found sufficient excludable

days from the computation so that there was no violation of the

Speedy Trial Act. United States v. Davenport, 935 F.2d 1223 (11th

Cir.1991) (For those pretrial motions which require hearings, all

the time between the filing of the motion and the conclusion of the

hearing is excluded). Henderson v. United States, 476 U.S. 321,

330, 79 L.Ed.2d 299, 309, 106 S.Ct. 1871 (1986) (Congress intended

to exclude all such time "whether or not a delay in holding that

hearing is "reasonably necessary.' ").

AFFIRMED.