United States v. Russell

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

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No. 98-50804
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UNITED STATES OF AMERICA,

Plaintiff-Appellee,
VERSUS

WILLIAM HOBERT RUSSELL, A.K.A “EL INDIO,”
A.K.A WILLIAM HOBART RUSSELL

Defendant-Appellant.

_______________________________________________

Appeal from the United States District
Court for the Western District of Texas

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March 1, 2000
Before POLITZ and DAVIS, Circuit Judges and RESTANI, Judge.*

JANE A. RESTANI, Judge:

This is an appeal from the district court’s denial of

defendant Russell’s motion to vacate sentence under 28 U.S.C.A. §

2255 (West. Supp. 1999). Russell v. United States, No. EP-98-CA-

152-H (EP-94-CR-59-H), (W.D. Tex. June 16, 1998)(“Russell I”).

Russell makes various arguments, all arising from his counsel’s

absence during two days of trial. After reviewing the evidence,

the court concludes that Russell was deprived of his right to

counsel during a critical stage of trial.

I.

*
Judge, U.S. Court of International Trade, sitting by
designation.
 In a superseding indictment Russell was charged with

conspiring to possess marijuana and cocaine with intent to

distribute and for conspiring to launder money that was the

proceeds of drug transactions. Id. at 2. The district court

tried seventeen defendants together, including Russell, in

October 1994. Id. The jury found Russell guilty on the first

count of the indictment (conspiracy to possess with the intent to

distribute) in violation of 21 U.S.C. §§ 841(a)(1) & 846 (1994)

and the eighth count of the indictment (conspiracy to launder

money) in violation of 18 U.S.C. § 1956(a)(1)(A)(i) (1994).

United States v. Pena-Rodriguez, 110 F.3d 1120, 1122 (5th Cir.

1997).

On direct appeal, this court affirmed Russell’s conviction

on April 10, 1997 and denied rehearing on May 22, 1997. Id. at

1120. On May 7, 1998, Russell filed a motion to vacate sentence

pursuant to 28 U.S.C. § 2255. Russell I, at 1. The district

court denied the motion. Id. at 4. The district court also

denied Russell’s motion for reconsideration. Russell v. United

States, No. EP-98-CA-152-H, EP-94-CR-59-H(29), at 4 (W.D. Tex.

Aug. 10, 1998) (“Russell II”).

Russell argued that: (1) he was denied the right to counsel

for two consecutive days of trial; (2) counsel with a conflict-

of-interest represented him during his counsel’s absence; (3) the

district court erred in determining that the substitution of

2
counsel had no legal significance; and (4) that he had been

deprived of his choice of counsel. Russell I at 2-3; Russell II,

at 4.

Russell bases all of his arguments on events that occurred

several days into the trial. Russell I, at 2. On October 26,

1994, Russell’s attorney, Bernard Panetta, fell ill and fainted

in the lobby outside the courtroom. Id. Panetta was taken to a

hospital by ambulance. Id. Another defense attorney, Carlos

Villa, representing co-defendant Robert Alan Dickinson, informed

the court that Panetta had consented to the continuance of

contempt proceedings against the witness Truelove, requested that

no witnesses against Russell be presented and then announced that

he would ‘sit in’ for Panetta. Id. at 2-3. The district court

instructed the government not to call any witness relevant to

Russell until such time as Panetta was able to return to court.

Id. at 3. The district court did not speak to Russell or ask for

his consent to the substitution, although Villa stated that he

had the client’s (Russell’s) permission to represent him that one

day.1 On October 28th, Panetta returned to court and continued

1
The exact exchange between the district court and Villa
is as follows:
“THE COURT: Well, this may all be somewhat academic, but I’m
led to believe that Mr. Panetta has taken ill, so we don’t want
to bring a witness in that’s relevant to his client until we find
out if he’s going to recover.
MR. VILLA: Your Honor, I’ve spoken with Mr. Panetta right
before they took him in the ambulance, and he told me that if you
want to go through the procedure regarding Mr. Truelove, holding
(continued...)

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to vigorously represent Russell. Russell I, at 3. Panetta did

not question anything that took place in his absence.

During Panetta’s absence, as directed by the district court,

the government did not present any testimony that directly

implicated Russell. The government did present, however, the

testimony of eighteen witnesses and introduced numerous exhibits

relating to the conspiracy. The evidence implicated several of

Russell’s co-conspirators in the money laundering scheme: Ruben

Gallegos (“Gallegos”), Avelino Gil Terrazas (“Gil”) and Eduardo

Gonzalez Quirarte (“Quirarte”). Specifically, the evidence

elaborated on the co-conspirators heavy involvement in the

importation of marijuana through the use of false compartments in

the fuel tanks of trucks. The government also presented evidence

detailing how and where money was paid and counted. On the last

half day of Panetta’s absence, the government presented evidence

1
(...continued)
him in contempt or whatever that process is going to take that he
has no objection to proceeding with that.
As far as any other witnesses against him, we would ask the
Government not to call them at this stage. As far as also Mr.
Panetta, Your Honor, and I’m jumping to another area, the client
has given me permission for today only, to sit in for him.
THE COURT: I understand that, but whether permission or not,
whether today only or not, whether anything else, it would be
better not to call witnesses whose testimony relates directly to
Mr. Panetta’s client until we find out what his status is going
to be.
MR. VILLA: Yes, sir.
THE COURT: It may be that he’ll be able to return and again
represent his client. It may be that he can’t. And if he can’t,
then other action has to be taken to protect his client’s
rights.”

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of Avelino and Norma Gil’s attempts to launder money through the

purchase of various properties using cash.

On the day prior to Panetta’s absence, the government had

presented the testimony of Felipe Madrid, the key witness against

Russell. Madrid testified about Russell’s management of the

distribution of marijuana operations and involvement in providing

Madrid with funds. Thus, the presentation of evidence flowed

directly from Russell’s role in the money laundering conspiracy

to the roles of Gallegos, Gil and Quirarte in the same money

laundering conspiracy and the overall conspiracy to import and

distribute marijuana.

II.

After denying Russell’s motion to vacate sentence, the

district court issued an amended certificate of appealability as

required by 28 U.S.C.A. §2253(c)(1)(B) (West Supp. 1999). This

court has jurisdiction pursuant to 28 U.S.C. § 1291 (1994). The

court reviews factual findings for clear error and questions of

law de novo. United States v. Placente, 81 F.3d 555, 558 (5th

Cir. 1996); United States v. Seyfert, 67 F.3d 544, 546 (5th Cir.

1995).

Russell argues that he was without counsel on both October

26th and October 27th and was therefore denied his Sixth

Amendment right to counsel. He contends that the district court

denied him the right to counsel by failing to apprize him of his

5
rights and refusing to ask him whether he wished to proceed with

Villa, other substitute counsel, or if a continuance would be in

order. On October 26th, the court merely required that the

government not call any witness that would directly relate to

Russell. It is unclear whether the district court accepted

Villa’s attempt to ‘stand in’ for Panetta.

In any event, it is disturbing that the district court did

not advise Russell of his rights in this situation. The right to

counsel must be waived affirmatively and such waiver must be

understandingly, intelligently, and voluntarily done. Ford v.

Wainwright, 526 F.2d 919, 921 (5th Cir. 1976). A waiver cannot be

established through presumed acquiescence. Johnson v. Zerbst,

304 U.S. 458, 464 (1938)(footnotes omitted), overruled on other

grounds by Edwards v. Arizona, 451 U.S. 477 (1981). Furthermore,

it is the “responsibility, obligation and duty of the Trial

Judge” to make this “serious determination of waiver,” and “such

determination should appear plainly on the record.” Ford, 526

F.2d at 922. The trial court should assist in protecting the

defendant’s rights, at a minimum, by insuring that the defendant

is aware of and understands the right to have counsel present, by

explaining the meaning and consequence of waiving the right to

counsel or of accepting substitute counsel and making sure that

such waiver or acceptance of alternate counsel is on the record.

See Siverson v. O’Leary, 764 F.2d 1208, 1217 (7th Cir. 1985).

6
 In this case, the district court did not confer with Russell

on or off the record, did not apprize him of his rights and did

not ask him at any point what he would like to do about his

attorney’s unexpected absence. Thus, Russell was without counsel

and did not waive his right to counsel from the morning of

October 26th until Panetta returned to trial on October 28th.

In light of these facts, Russell urges this court to adopt a

bright line rule that the taking of any evidence at trial in the

absence of counsel is prejudicial per se under United States v.

Cronic. 466 U.S. 648 (1984). Cronic does not so hold and we

decline to fashion such a rule.

Cronic holds that because the guiding of hand of counsel is

essential, “a trial is unfair if the accused is denied counsel at

a critical stage of his trial.” Cronic, 466 U.S. at 658

(emphasis added). Therefore, “no specific showing of prejudice

was required.” Id. at 659 (citing Davis v. Alaska, 415 U.S. 308,

318 (1974)). Cronic does not provide significant guidance on

which parts of trial are considered “critical,” but does provide

some meaningful abstract standards by which to judge if the

absence of counsel is at a critical stage of trial. First, there

must be a denial of such significance that it makes the adversary

process itself unreliable. Id. Second, the Cronic court makes

clear that “only when surrounding circumstances justify a

presumption of ineffectiveness can a Sixth Amendment claim be

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sufficient without inquiry into counsel’s actual performance at

trial.” Id. at 662 (emphasis added)(footnote omitted).

Since Cronic was announced, various Courts of Appeals have

struggled to define the “critical” stages of trial during which

the absence of counsel creates a presumption of prejudice. See

e.g., Hernandez v. United States, No. 97-2648, 2000 WL 123937, at

*3 (2d Cir. Feb. 03, 2000) (finding that counsel’s failure to

prosecute direct appeal of conviction is prejudicial per se);

United States v. Lampton, 158 F.3d 251, 255 (5th Cir. 1998)

(finding that absence of counsel at juror-tampering hearing due

to illness was harmless error); Vines v. United States, 28 F.3d

1123, 1129 (11th Cir. 1994) (in a multi-defendant case finding

that absence of counsel during the taking of non-inculpatory

evidence at trial is not prejudicial per se); Tucker v. Day, 969

F.2d 155, 159 (5th Cir. 1992) (finding that constructive absence

of counsel at re-sentencing hearing was prejudicial per se);

United States v. O’Leary, 856 F.2d 1011, 1019 (7th Cir. 1988)

(finding that absence of counsel on appeal and failure to timely

file brief was prejudicial per se); Green v. Arn, 809 F.2d 1257,

1263 (6th Cir. 1987)(finding the absence of counsel during the

taking of evidence on the defendant’s guilt at trial was

prejudicial per se), vacated on other grounds, 484 U.S. 806

(1987), reinstated, 839 F.2d 300 (1988); Siverson, 764 F.2d at

1220 (finding the absence of counsel during jury deliberations

8
was harmless error); see also Hunte v. Keane, CV-97-1879(RR),

1999 WL 754273, at *8 (E.D.N.Y. Aug. 24, 1999) (finding that

absence of counsel at suppression hearing is not prejudicial).

For purposes of this matter, the most instructive of these

cases is Vines, although it is distinguishable. In Vines, the

defendant agreed, on the record, to the absence of his counsel

from 4:15 p.m. until the end of the day. Vines, 28 F.3d at 1125-

26. Further, the trial court directed that the government present

witnesses relevant to the defendant who was represented by

counsel. Id. On appeal, without discussing possible waiver of

right to counsel, the Vines majority determined that the

attorney’s absence was not at a critical stage of trial because

no evidence directly inculpating the defendant was presented.

Id. at 1128.

Vines, however, was convicted for possession with the intent

to distribute and only that count was analyzed. Vines, 28 F.3d

at 1125. He was acquitted on the conspiracy charge. Id. at

1126. In contrast, Russell was convicted for conspiracy to

possess marijuana and cocaine with intent to distribute and

conspiracy to launder money that was the proceeds of drug

transactions. Where conspiracy is at issue, it is more difficult

to draw the line where directly inculpatory evidence ends and

indirectly inculpatory evidence begins. Evidence relevant to the

establishment of the same conspiracy with which any conspirator

9
is charged is likely to be relevant as to any other co-

conspirator. Furthermore, any evidence with respect to a co-

conspirator that contributes to the establishment of an element

of the conspiracy increases the perception that the other alleged

participants are also guilty.

As the government builds its case against any co-

conspirator, the conspiracy is more clearly established and all

of the co-conspirators become more tightly linked. The

government presented the evidence of Russell’s money laundering

immediately prior to the presentation, in the absence of

Russell’s counsel, of extensive evidence against Gallegos, Gil

and Quirarte, Russell’s co-conspirators in the money-laundering

charge. The government established how the marijuana was

imported, by whom it was paid for, where the marijuana was paid

for, and who counted the money. To the extent that the

government continued to build its case of conspiracy, even if

against other co-conspirators, this inferentially increased the

taint of guilt of Russell. Considering the fact that the

evidence against Russell was circumstantial, subsequent events

adducing the guilt of co-conspirators is especially condemning.

For Russell to be without counsel as the probability of his

guilt increased during the government’s presentation of evidence

against his co-conspirators is unacceptable. Without counsel

present in such circumstances, neither is the client in a

10
position to challenge the implicit connection between himself and

his co-conspirators nor is counsel available to cross-examine the

witnesses presented. The adversary process becomes unreliable

when no attorney is present to keep the taint of conspiracy from

spreading to the client. See Cronic, 466 U.S. at 659.

Therefore, counsel Panetta’s two day absence was at a critical

stage of Russell’s trial. Under Cronic, no specific showing of

prejudice is necessary and Russell’s conviction must be reversed.

See id. at 659-60.

III.

The court has considered the remainder of Russell’s

assignments of error, and concludes that they are either without

merit or rendered moot by the disposition of this case.2 For the

reasons set forth herein, the conviction is REVERSED for trial

error and REMANDED to the district court for a new trial.

2
Furthermore, the court’s decision to reverse does not
decide whether or what type of “harmless error” analysis is the
correct standard for evaluating the absence of counsel if it is
determined that such absence is not per se prejudicial.

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