United States Court of Appeals
For the First Circuit
No. 05-1582
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN SEGARRA-RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
Ignacio Fernández de Lahongrais, by appointment of the court,
for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney (Chief,
Appellate Division), with whom Rosa Emilia Rodríguez-Vélez, United
States Attorney, was on brief, for appellee.
January 11, 2007
SELYA, Circuit Judge. Defendant-appellant Juan Segarra-
Rivera (Segarra) asks that we remand for an evidentiary hearing on
his asserted right to withdraw his guilty plea. Segarra premises
this entreaty on the ground that he was entitled, under the Sixth
Amendment, to be represented at his plea-withdrawal hearing by
conflict-free counsel. For all practical purposes, that rule is
ironclad; the question here is whether the district court, when
faced with a colorable claim of an actual conflict of interest,
should have invoked that rule. Concluding, as we do, that the
court acted in derogation of Segarra's Sixth Amendment rights by
proceeding as it did, we remand for further factfinding consistent
with this opinion.
We rehearse here only those facts necessary to place this
appeal into perspective. On August 28, 2003, a federal grand jury,
in a superseding indictment, charged Segarra with conspiracy to
distribute multi-kilograms of controlled substances. See 21 U.S.C.
§§ 841(a)(1), 846. The thrust of that count was that Segarra
managed and supervised a booming business in the sale of drugs at
a housing project in Juncos, Puerto Rico. The superseding
indictment also contained a second (derivative) count seeking
criminal forfeiture.
After some preliminary skirmishing, not relevant here,
Segarra pleaded guilty to both counts of the indictment pursuant to
a written plea agreement (the Agreement). See Fed. R. Crim. P.
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11(c)(1)(A)-(B). The instant appeal concerns the circumstances
surrounding Segarra's decision to plead guilty and his subsequent
endeavors to withdraw his guilty plea.
During the relevant time frame, Attorney Rafael Anglada-
López (Anglada) represented Segarra by appointment of the district
court.1 On August 17, 2004, Anglada visited Segarra in prison and
secured his signature on the Agreement. A change-of-plea hearing,
held the next day, proceeded without incident. In pertinent part,
Segarra, through an interpreter, confirmed that he understood both
the nature of the charges and the consequences of confessing guilt
to them. He stated that he had entered into the Agreement of his
own accord and without pressure from anyone; that he had discussed
the terms of the Agreement with his attorney before signing it; and
that he was satisfied with Anglada's representation.
On December 8, 2004, Segarra initiated a series of pro se
motions aimed at vitiating his plea. He claimed that he had not
been fully informed of the consequences of pleading guilty and that
his entry into the Agreement was neither knowing nor voluntary; to
the contrary, he signed the Agreement and responded on cue during
1
Anglada was Segarra's second court-appointed lawyer. He was
appointed on June 15, 2004, after Segarra's original attorney,
Francisco M. Dolz-Sánchez, was permitted to withdraw. In
connection with that switch, Segarra had alleged that Dolz-Sánchez
"wants me to sign an agreement, which in my opinion is unfair,
because I haven't seen the evidence."
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the change-of-plea colloquy only because Anglada had coerced and
manipulated him.
With respect to this last-mentioned claim, Segarra
offered a number of particulars. He asserted, for example, that
Anglada took advantage of his lack of education, his inability to
speak English, and his debilitated physical and mental condition.
He also asserted that, during Anglada's prison visit, the lawyer
had insisted that he would not leave empty-handed but "had to come
away with the [A]greement signed." In order to ensure Segarra's
acquiescence, Anglada ambushed him with a surprise visit from his
wife, Yolanda Vega, whom Segarra had not seen in three months.
Vega, convalescing in a wheelchair, allegedly implored Segarra
through a veil of tears to follow Anglada's lead. Segarra further
noted that Anglada had not performed the rudimentary preparatory
work needed to try the case and, thus, was adamantly unreceptive to
Segarra's insistence on a jury trial. Finally, Segarra charged
that Anglada had concealed exculpatory evidence from the court. As
a result of these foibles, Segarra stated, he signed the Agreement
and went through the change-of-plea colloquy in a state of
confusion.
In response to Segarra's allegations, Anglada filed a
motion requesting an evidentiary hearing on the plea-withdrawal
request. In that motion, Anglada admitted that, after entering the
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plea, Segarra repeatedly beseeched him (Anglada) to move to set it
aside. Anglada had not, however, heeded his client's wishes.
The district court considered Segarra's serial motions on
January 28, 2005 (without convening an evidentiary hearing). At
that time, Segarra submitted a signed statement that a fellow
inmate had helped him draft. That statement reiterated much of
what he had disclosed in his pro se motions, including his claims
that Anglada had concealed exculpatory evidence and manipulated him
into signing the Agreement. In its peroration, Segarra's statement
declared:
I have never accepted the agreement that
counsel Anglada[] made me sign. Counsel
Anglada[] never brought me the evidence in the
case and I always insisted to counsel
Anglada[] on my desire to go to trial.
Counsel Anglada[] merely limited himself to
put "undue pressure" so that I would sign, so
much so that he brought my wife, Yolanda Vega,
in the conditions that I have already reported
. . . .
Segarra also requested that the district court appoint new counsel
to represent him at the plea-withdrawal hearing and thereafter
throughout the case.
Faced with this statement and request, the district court
solicited comments from both the prosecutor and Anglada. The
prosecutor argued that the attempted plea withdrawal constituted no
more than second-guessing sparked by what seemed likely to be a
stiff sentence. For his part, Anglada insisted that he had
explained the Agreement fully to Segarra in Spanish and that
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Segarra had understood him. He maintained that his sole contact
with Vega had been the receipt of desperate telephone calls from
her. He also suggested that video cameras at the prison would bear
out the absurdity of the charge of coercion. While he conceded
that he had been unresponsive to Segarra's persistent instructions
that he seek to vitiate the plea, he explained that he had hoped to
persuade his client not to pursue such a course.
Anglada proceeded to disparage Segarra's stated basis for
retraction of the plea, indicating to the court that Segarra had
understood the nature and consequences of his actions. He even
pointed out that Segarra, in his pro se motions, had failed to
assert his innocence. He then stated cryptically that he wished he
could call Vega and Segarra's brothers as witnesses because they
would "know whether [Segarra] is guilty or not."
In a written rescript, the district court denied
Segarra's motions to withdraw his guilty plea and for new counsel.
See United States v. Segarra-Rivera, Crim. No. 03-188 (D.P.R. Mar.
4, 2005) (unpublished). Following the imposition of a 135-month
incarcerative sentence, Segarra — represented by new counsel —
prosecuted this timely appeal.
The lower court's rescript focused on whether Segarra
should be allowed to withdraw his guilty plea. In our view, this
focus puts the cart before the horse. There is a logically
antecedent question: was Segarra entitled to representation by
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counsel other than Anglada at the plea-withdrawal hearing? If he
was, then his request for the appointment of new counsel should
have been honored — and the failure to honor it would cast doubt
upon the validity of the record on which the district court ruled.
Consequently, we start with this antecedent question.
The Sixth Amendment guarantees that, in all felony cases,
an accused has a right to the assistance of counsel. U.S. Const.
amend. VI. Unless knowingly and intelligently waived, this right
attaches at every critical stage of the criminal process. Iowa v.
Tovar, 541 U.S. 77, 80-81 (2004). The entry of a guilty plea is
one such critical stage, see id. at 81, and a plea-withdrawal
hearing is another, see United States v. Sanchez-Barreto, 93 F.3d
17, 20 (1st Cir. 1996).
Here, Segarra's Sixth Amendment challenge, as presented
to the district court, had two related but conceptually distinct
aspects. One aspect rested upon an argument that counsel performed
ineffectively or incompetently. See, e.g., Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). That aspect is not
pursued on this appeal and, in all events, is not properly before
us. Claims of ineffective assistance of counsel simpliciter,
including claims of substandard performance, are routinely
adjudicated in collateral post-conviction proceedings. See United
States v. Torres-Rosario, 447 F.3d 61, 64 (1st Cir. 2006); see also
28 U.S.C. § 2255. While there are exceptions to this praxis, see,
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e.g., United States v. Theodore, 354 F.3d 1, 3 (1st Cir. 2003);
United States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991),
Segarra makes no developed argument supporting the applicability of
any such exception here.
The remaining aspect of Segarra's Sixth Amendment
challenge is of a different genre. In mounting this attack,
Segarra does not rely upon allegations of attorney ineffectiveness
or incompetence per se; rather, he maintains that Anglada concealed
exculpatory evidence and manipulated him into signing the Agreement
in order to avoid a trial for which he (the lawyer) had neglected
to prepare. If Segarra's allegations are true — a matter on which
we take no view — then Anglada would have had a very real
incentive, at the plea-withdrawal stage, to cover up his
misconduct. This would mean that Anglada was laboring under an
actual conflict of interest in undertaking to represent Segarra.
See United States v. Burgos-Chaparro, 309 F.3d 50, 52 (1st Cir.
2002) (distinguishing ineffectiveness and conflict of interest
claims). That type of claim, unlike an ineffectiveness claim, is
not routinely relegated to collateral review.2
2
Apart from justiciability concerns, there is another
important distinction between the two types of claims. When a
defendant's claim rests solely on allegations that counsel
performed ineffectively or incompetently, the defendant must also
show prejudice. See Strickland, 466 U.S. at 692-93; Scarpa v.
DuBois, 38 F.3d 1, 8-9 (1st Cir. 1994). When, however, a defendant
makes a timely and colorable showing that his counsel labored under
an actual conflict of interest, he may be entitled to relief
without regard to proof of prejudice. See Cuyler v. Sullivan, 446
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We add a caveat. Not every bare allegation of a
disagreement between lawyer and client is enough to trigger a right
to new counsel. See, e.g., United States v. Mota-Santana, 391 F.3d
42, 47 (1st Cir. 2004); United States v. Myers, 294 F.3d 203, 206-
08 (1st Cir. 2002). An even smaller subset of such disagreements
will (even arguably) amount to an actual conflict of interest.
Lawyers ordinarily aspire to do their best for clients. Thus, an
"actual conflict," for Sixth Amendment purposes, entails a conflict
of interest sufficient to displace that presumption — one "that
adversely affects counsel's performance." Mickens v. Taylor, 535
U.S. 162, 172 n.5 (2002).3
Here, more than a mere disagreement is at issue.
Segarra's conflict of interest claim was seasonably raised below.
The charge is one of improper and unethical conduct, not merely
professional negligence. And, finally, the record provides enough
indicia of an actual conflict of interest to make the claim
colorable. Hence, the claim warrants review on direct appeal. Cf.
United States v. Colón-Torres, 382 F.3d 76, 84-85 (1st Cir. 2004)
U.S. 335, 349-50 (1980); Torres-Rosario, 447 F.3d at 64.
3
Mickens — a habeas case — narrowed the precedential orbit of
Cuyler v. Sullivan, 446 U.S. 335 (1980), upon which this court,
like many courts of appeals, had relied in resolving conflict of
interest cases. See Mickens, 535 U.S. at 174-75. While this
opinion draws upon principles extracted from pre-Mickens case law,
neither Mickens nor Sullivan is directly applicable.
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(discussing, under the rubric of ineffectiveness, the
appropriateness of direct review of conflict of interest claim).
This brings us to why we believe that Segarra made a
sufficient showing of an actual conflict to render his claim
colorable and justify further inquiry by the district court. He
alleged, with specificity, that Anglada used improper means — for
example, concealing exculpatory evidence from the court,
brainwashing Segarra's ailing wife and bringing her to prison
without any forewarning, and refusing to leave without Segarra's
signature on a pre-prepared agreement — to secure his acquiescence
in a plea he did not want. Segarra describes a motive for the
misconduct — the attorney's eschewal of any semblance of meaningful
trial preparation — that is not implausible on its face. The
indirect evidence, such as the fact that Segarra made his retraction
request soon after the change-of-plea hearing, lends some credence
to the charges. While it may well be that Segarra's accusations
will melt away in the crucible of adversarial testing, we think that
he offered enough to warrant a hearing. Cf. Mota-Santana, 391 F.3d
at 45, 47 (declining to grant relief sought — there, reversal for
district court's refusal to appoint new counsel — upon undeveloped
and purely conclusory accusation that attorney "deceived"
defendant).
The non-evidentiary hearing held by the district court
did not suffice. Segarra's charges, if founded, embody conduct
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different in both kind and degree from a defense attorney's
customary encouragement to his client — even strong encouragement
— to avoid a trial by entering into a negotiated arrangement with
the government. The charges impute to Anglada conduct that is both
improper and unethical.4 An attorney who has committed such
misconduct — and we again emphasize that the alleged misconduct
remains to be proven — would have a very powerful incentive to sweep
it under the rug.
In such a situation, an inevitable tension arises between
advancing the client's interests and preserving the attorney's
reputation (and, perhaps, his livelihood). See Colón-Torres, 382
F.3d at 90; Sanchez-Barreto, 93 F.3d at 21. That tension is enough
to sow the seeds for an actual conflict of interest. See Sanchez-
Barreto, 93 F.3d at 20 (recognizing actual conflict of interest when
"pursuit of a client's interests would lead to evidence of an
attorney's malpractice").
The way in which Anglada responded to Segarra's charges
reinforces our intuition that Anglada could not appropriately
represent Segarra at the plea-withdrawal hearing. Although Anglada
admitted that Segarra had clamored, over and over, to withdraw his
plea, beginning soon after it was entered, he made no effort to
carry out his client's wishes until a frustrated Segarra forced his
4
This, among other things, distinguishes this case from
Torres-Rosario, in which the defendant alleged that the prosecutor
had been guilty of improper conduct. See 447 F.3d at 64-65.
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hand by filing the first of a series of pro se motions with the
district court. Then, at the hearing itself, Anglada opposed
retraction of the plea; attempted to undermine the factual basis on
which the plea-withdrawal request rested; dodged Segarra's charges
of coercion; and went so far as to proffer evidence contradicting
Segarra's version of the relevant events.5 With Anglada so busily
engaged in defending his own integrity and the bona fides of the
plea that he had orchestrated, his interests and Segarra's were
clearly at odds.
The government suggests that the statements made by
Segarra during the change-of-plea hearing undercut his Sixth
Amendment challenge. This suggestion is not frivolous: from time
to time, we have looked to such statements as a basis for denying
plea withdrawals. See, e.g., United States v. Alegria, 192 F.3d
179, 186 (1st Cir. 1999) (explaining that, ordinarily, "a defendant
who asserts a fact in answer to a judge's question during a change-
of-plea proceeding ought to be bound by that answer"). That
principle, however, does not apply in "exceptional circumstances."
Id.
5
We fully appreciate that Anglada may have felt it necessary
to take these steps in order both to defend his own reputation and
to fulfill what he sincerely believed to be his obligations as an
officer of the court. But that is precisely the point: if either
or both of these concerns were paramount, Anglada could hardly be
expected to represent Segarra's interests. A lawyer burdened with
conflicting allegiances to two masters serves neither well.
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This case potentially fits within that exception. On
Segarra's theory of what transpired, clearly articulated in the
court below, the statements that he made at the change-of-plea
hearing were the product of Anglada's manipulative conduct rather
than proof of the absence of improper manipulation. Given Segarra's
preliminary showing, he was entitled to have that theory advanced
by conflict-free counsel and evaluated by the district court.
The short of it is that the Sixth Amendment entitled
Segarra to the assistance of counsel at his plea-withdrawal hearing.
He did not receive that assistance. Despite having made a timely
request for new counsel and a colorable showing that his then-
attorney was hampered by an actual conflict of interest, Segarra was
left to fend for himself at this critical stage in the proceedings.
That was constitutionally impermissible. See Colón-Torres, 382 F.3d
at 90; Sanchez-Barreto, 93 F.3d at 22. This shortcoming taints the
district court's determination that Segarra failed to adduce
sufficient evidence of manipulation or coercion.
That leaves uncertain the nature of the remedy. In this
instance we choose, in the exercise of our discretion, to leave the
sentence intact and remand to the district court for the appointment
of conflict-free counsel so that the court can hold a full hearing
on Segarra's plea-withdrawal motion.6 If Segarra prevails in that
6
We suggest that the district court may wish to consider
asking Segarra's appellate counsel, who has ably represented him in
this court, to accept that appointment.
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proceeding, the district court should then vacate his sentence,
annul his guilty plea, and conduct such further proceedings as may
be necessary. If, however, the government prevails, the district
court, if requested to do so by Segarra, shall vacate the existing
sentence pro forma and immediately reimpose the same sentence,
thereby giving Segarra an opportunity to appeal the court's denial
of his plea-withdrawal motion.
We need go no further. For the reasons elucidated above,
we remand this matter for further proceedings consistent with this
opinion. We express no opinion as to the outcome of the anticipated
plea-withdrawal hearing.
So Ordered.
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