IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-10857
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES L. WILD,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
August 9, 1996
Before BENAVIDES, STEWART, and DENNIS, Circuit Judges.
CARL E. STEWART, Circuit Judge:
This is an appeal in two parts of a judgment of conviction. Appellant first raises constitutional
claims under the Sixth Amendment. Then he argues that the district court improperly sentenced him.
For the following reasons we affirm the judgment below.
BACKGROUND
In June 1991, appellant James L. Wild helped form a company called Hi-Tech Phones in
Houston, Texas. Prior to this time, Wild sold vending machines and had no particular background
in the telephone business. In 1990 he and several others started a company called Hi-Tech for the
purpose of marketing pay telephones to the public. In the summer of 1991 Wild and his eventual co-
defendant, Roberta Raynes moved the business from Houston to the Dallas area and renamed it U.S.
Intertel. Wild was the president and co-owner with Raynes.
Wild, through U.S. Intertel, offered to furnish prospective customers with a number of pay
phones, to locate places to install the telephones, to install the phones and provide connections to
local and long distance services, and to collect all long distance revenues and send them to the
investor in exchange for an investment of $10,000 or more.1 Other than make the initial payment,
all the investor had to do was periodically collect the money in the phone’s coin box.
To induce investments, U.S. Intertel placed advertisements in newspapers throughout the
United States which made glowing promises of tremendous profits at little or no risk. Many of the
representations were false, fraudulent, and misleading. Among the misrepresentations cited in the
indictment was U.S. Intertel’s claim, made in written materials and through the oral statements of its
employees, that it had a business relationship with the long-distance carrier US Sprint as well as
AT&T and MCI.
People who called an “800" telephone number printed in U.S. Intertel’s ads were told that the
average U.S. Intertel pay telephone made $400 per month in gross receipts and that the average part-
time operator made over $45,000 annually. Many prospective investors were also told that the
telephones would be delivered within 45 days of receipt of payment and installed within two weeks
after delivery. In fact, only a small number of U.S. Intertel investors received the promised number
of telephones within the promised period of time. Investors were assured that any phones not making
at least $200 per month would be relocated at U.S. Intertel’s expense, but only a few phones were
relocated; and, according to the indictment, none were relocated to locations that generated the
promised amount of revenue.
According to the government, no U.S. Intertel operators were ever successful. Only a handful
of the 81 people who sent money to U.S. Intertel ever had a phone that made as much as $100 per
month; most made far less. Nevertheless, U.S. Intertel continued to promise sizable profits and sell
installed pay telephones despite the reality.
Wild also allegedly gave false and misleading information about U.S. Intertel to Dun &
Bradstreet, the business reference company, claiming falsely that U.S. Intertel was the United States
subsidiary of an overseas corporation and that it had been capitalized by it s parent initially with
1
The government says the appellants induced investments ranging between $24,000 and $120,000.
2
$500,000 in cash. In fact the company had begun with the $250,000 in investments carried over from
investments in Hi-Tech. At least three investors relied on this misinformation to Dun & Bradstreet
in deciding to send money to the company.
Wild and codefendant Roberta Raynes were originally charged with mail and wire fraud. The
trial court appointed Steven Williams to represent Wild. Raynes pleaded guilty to a superseding
indictment, leaving Wild as the sole defendant charged with 16 counts of mail or wire fraud and one
count of inducing travel in interstate commerce in aid of a scheme to defraud.
On February 28, 1995, Wild reached a plea agreement with the government. Phillip C.
Umphres, an assistant United States attorney, represented the government. The agreement stipulated
that Wild would not receive a sentence of longer than 18 months in custody. At rearraignment on
March 6, 1995, Wild entered his guilty plea.
On May 10, 1995, Wild’s attorney, Williams, filed a motion to withdraw because Wild wanted
to change his plea to “not guilty” against his advice.2 Attached to the motion itself was a letter Wild
had written the probation officer expressing his concern that Williams was too pessimistic about the
chances for success at trial. The letter related a conversation Wild had with his attorneys, Williams
and Mark Mathie: “Now I was being told that if we went to trial I would lose and could get 10 years
in prison! They now wanted me to plea bargain. After listening to this for an hour I began to feel
pressured and threatened. This was distressing news . . .”
Assistant United States Attorney Umphres filed a response to Williams’s motion which
recommended that the court conduct a hearing to determine the underlying facts. The response also
suggested that the court should give much weight to the letter because it had been written out of
anger after Wild learned that Raynes, who had agreed to assist the government in its prosecution of
Wild, would be sentenced to probation. Umphres reported that Larry Gaydos, an attorney, had
contacted the government to disclose that his law firm had been contacted about representing Wild
2
The motion stated that “Williams and McKool Smith’s [Williams’s law firm] representation has
been rendered unreasonably difficult by Wild.” The motion gave no further explanation.
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at sentencing and that Wild did not want to withdraw his plea. At a May 15 hearing, the district court
denied the motion and also rejected the guilty plea and plea agreement after a brief, on-the-record
colloquy with Wild. Trial was set for June 12, 1995.
Trial lasted 7 days, and the jury convicted Wild of 15 counts of mail and wire fraud3 and
acquitted him on the 17th count, which charged inducement of travel in interstate commerce. The
district court sentenced Wild on September 11, 1995, adding a 2-point enhancement pursuant to
U.S.S.G. § 3C1.1 for obstructing justice by giving false testimony at trial. The court also added 2
points under § 2F1.1(b)(2)(A) for an offence involving more than minimal planning and a 4 point
“leadership enhancement” pursuant to § 3B1.1(a) .
Wild timely appealed.
DISCUSSION
I. Right to Counsel
A. Denial of Defense Counsel’s Motion to Withdraw
The district court’s denial of defense counsel’s motion to withdraw is reviewed for abuse of
discretion. United States v. Cole, 988 F.2d 681, 683 (7th Cir. 1993); United States v. Walker, 915
F.2d 480, 482 (9th Cir. 1990).
Wild argues that he was entitled to a hearing to determine whether his counsel was operating
under a conflict of interest following Williams’s motion to withdraw and Wild’s expressed wish to
no longer have Williams represent him. He claims that the district court’s failure to hold such an
evidentiary hearing was error depriving him of reasonably effective assistance of counsel.
Alternatively, Wild claims he should have had new counsel appointed to him.
When filing a motion to withdraw, an attorney should provide a detailed explanation of the
reasons why he believes that "good cause" exists for him to withdraw as counsel. United States v.
Hall, 35 F.3d 310, 316 (7th Cir. 1994). Williams’s motion offered no details as to why he and Wild
could no longer work together. It only made vague reference to the problem by stating that Wild
3
One count was dismissed on the government’s motion during trial.
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insisted upon pursuing an objective Williams and his firm considered imprudent. Wild contends that
this statement amounted to an admission by Williams of a conflict of interest and that the district
court should have looked further into the nature of the tension between him and Williams.
The trial court has the discretion to require specific reasons before granting such a motion.
The Seventh Circuit adopted in Cole the principle that “unless there is a demonstrated conflict of
interests or counsel and defendant are embroiled in an irreconcilable conflict that is so great that it
resulted in a total lack of communication preventing an adequate defense, there is no abuse of
discretion in denying a motion to withdraw.” Cole, 988 F.2d at 683. Wild does not assert that he
and Williams suffered an absolute communications breakdown. Rather, he suggests that the motion
to withdraw and disagreement over the plea agreement created sufficient tension between them to
preclude Williams or his law firm from providing effective assistance of counsel.
We disagree. Wild does not give any indication that the quality of Williams’s representation
lapsed in any particular way. Nor is there any indication that Williams and Wild were unable to work
together in defending him at trial. As to their underlying disagreement over whether Wild should
plead out, Williams did not interfere when Wild asked the trial court to reject his guilty plea.
In Lowenfield v. Phelps, 817 F.2d 285, 289 (5th Cir. 1987), we adopted the Supreme Court’s
holding in United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), that the
“determination of whether an attorney rendered effective assistance of counsel must concentrate ‘on
the adversarial process, not on the accused’s relationship with his lawyer as such.’” Nothing that was
before the district court suggested that Williams could not or would not represent Wild adequately.
There was no evidence before the court that denying the motion to withdraw would jeopardize the
process. Therefore, the district court did not abuse its discretion in denying Williams’s motion to
withdraw.
B. Refusal to Allow Wild a Chance to Consult Counsel
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“While a defendant has no absolute right to have a guilty plea accepted, a court must exercise
sound discretion in determining whether or not to reject a plea.” Santobello v. New York, 404 U.S.
257, 262, 92 S. Ct. 495, 498, 30 L. Ed. 2d 427 (1972).
At the hearing on May 15, 1995, after the trial judge denied Williams’s motion to withdraw,
he asked Wild whether he believed he was guilty and if he wanted a trial. At this point Wild said he
wanted to talk with his lawyer, Williams. The court denied the request and required Wild to decide
whether he wanted to change his plea and have a trial. Wild answered that he was not guilty and that
he wanted a trial. Consequently, the plea agreement was rejected, and the case went to trial. The
consequence of losing the plea agreement was that instead of an 18 month sentence pursuant to the
plea agreement, Wild received a 71 month sentence after trial. He contends that the district court
denied him assistance of counsel by not letting him confer with counsel before answering the court’s
questions about his plea.
The government counters that a defendant has no absolute right to plead guilty, and a trial
court has the discretion to reject a guilty plea. The district court, the government continues, satisfied
Federal Rule of Criminal Procedure 11's stricture of thoroughly delving into the defendant’s
understanding of his rights and the consequences of pleading guilty. On March 6, 1995, when Wild
pleaded guilty, he was advised of his rights after being sworn. He assured the court that his guilty
plea was being made after consultation with his attorney and that the plea was being made freely and
voluntarily and was not the result of force. The trial court waited for the presentence report to be
completed before ruling on whether to accept the plea.
A district court possesses broad discretion in deciding whether to accept or reject a guilty
plea. United States v. Bettelyoun, 503 F.2d 1333, 1336 (8th Cir.1974). That discretion is limited
only by the procedural requirements of Rule 11. Id. Wild had discussed his plea arrangement with
his counsel extensively beforehand. Furthermore, at the Rule 11 hearing he went through an
extensive discussion with the trial court on the very issue of his plea. The trial court did not abuse
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its discretion by refusing to allow Wild yet another o pportunity to consult with Williams prior to
advising the court whether he wanted to withdraw his guilty plea.
C. Wild’s Right to Consult with Counsel of His Choosing
Wild also argues that the district court should have allowed him an opportunity to confer with
Larry Gaydos, an attorney reportedly contacted about representing Wild at sentencing, before
requiring him to decide whether to withdraw his plea and go to trial. Its failure to do so, Wild
continues, deprived him of his right to proceed with counsel of his choice.
There is no merit to Wild’s argument. As the government states, Wild offers no evidence
other than its own response that he had engaged or even wished to engage Gaydos as his counsel.4
Furthermore, if he had so desired, he certainly could have done so prior to the May 15 hearing.
II. Sentencing
A. Sentencing Enhancement for Obstruction of Justice Under § 3C1.1
The first sentencing issue Wild raises on appeal is that the trial court erred in concluding that
he had committed perjury and consequently increasing his offense level by two points under U.S.S.G.
§ 3C1.1. He faults the trial court for not identifying the false testimony it relied on to enhance his
sentence.
The basis of a trial court’s obstruction of justice determination is a factual finding reviewed
only for clear error. United States v. Pepper, 51 F.3d 469, 474 (5th Cir. 1995). The factual
predicates for a finding of perjury exist where the defendant “gives false testimony concerning a
material matter with the willful intent to provide false testimony, rather than as a result of confusion,
mistake or faulty memory.” United States v. Dunnigan, 507 U.S. 87, 94, 113 S. Ct. 1111, 1116, 122
L. Ed. 2d 445, 453 (1993).
Wild is incorrect in asserting that the trial court did not identify instances of his lying during
testimony. The transcript of the sentencing proceedings relates an exchange between the court and
4
The government explains in its brief t hat Gaydos in fact had been retained by Wild’s family
members, who are English, to help them understand the proceedings against Wild.
7
Umphres during which the court elicits from the government evidence of testimony by Wild that was
“utterly inconsistent with the other evidence presented at trial.” Umphres responded by listing
contradictory testimony concerning Wild’s role in running the business. This testimony included
testimony from his former partner, Roberta Raynes, and the company’s bookkeeper, Debra Walters
and concerned his knowledge about the advertisements and the information submitted to Dun &
Bradstreet regarding Wild’s role at U.S. Intertel. Wild testified that he was never involved in drafting
or reviewing promotional materials and telemarketing scripts. Roberta Raynes testified to the
contrary; she said that he helped draft the ads. Wild testified that he told U.S. Intertel employees not
to represent an association with the long distance carrier U.S. Sprint in any advertising or
promotional material. There was contrary testimony that Wild felt strongly about associating U.S.
Intertel with major long distance carriers in print ads. Wild also testified that he never reported any
information regarding U.S. Intertel to Dun & Bradstreet, including information that the company was
capitalized at $500,000 and that it was a subsidiary of a British company - both false. However, the
trial testimony suggests that no one other than the appellant could have been responsible for supplying
that information.
These inconsistencies were so glaring that mistake or confusion could not explain them, and
the jury clearly chose to discredit Wild’s account. At sentencing the trial court identified for the
record the instances where the jury may have found Wild’s testimony to be false. The trial court’s
adjustment under § 3C1.1 was a legitimate application of the Guidelines.
B. Enhancements Under §§ 2F1.1(b) and 3B1.1(a)
Finally, Wild complains that applying the enhancements for both more than minimal planning
and leadership constituted double counting. The trial court’s application of the Guidelines is a legal
issue this court reviews de novo. United States v. Godfrey, 25 F.3d 263, 264 (5th Cir. 1994).
Godfrey also concerned an allegation that the district court improperly “double counted” in
adjusting upward the defendant’s sentence by four levels for being a leader or organizer under
U.S.S.G. § 3B1.1(a) and by two levels for more than minimal planning under § 2F1.1(b)(2). In that
8
case this court upheld the sentence because neither § 3B1.1 nor § 2F1.1 forbids double counting with
each other. Therefore increases under both sections is permissible.
CONCLUSION
For the foregoing reason, we affirm the judgment and sentence of the district court. Each
party shall bear its own costs.
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