Lead Opinion
KENNEDY, J., delivered the opinion of the court, in which KETHLEDGE, J., joined. CLAY, J. (pp. 476-82), delivered a separate dissenting opinion.
OPINION
Defendanfi-Appellant Juan Eugenio Marrero was convicted of possessing with
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of October 2, 2007, Sergeant Paul Kenny of the Grand Rapids Police Department and Michigan State Troopers Bob Watson and Chris Bush went looking for Marrero at an apartment complex in Comstock Park, Michigan. Information gathered in an ongoing drug-trafficking investigation indicated that Marrero was selling cocaine, and the officers wanted to question him. After a resident directed the officers to a particular apartment unit, Sergeant Kenny knocked on the door and Marrero’s girlfriend, Tina Walters, answered. Walters told the officers that Marrero was not currently there and gave them permission to come in and look for him. The officers’ sweep of the apartment verified that Marrero was not inside, but in the kitchen they found crack cocаine residue, a digital scale, and Marrero’s Bridge Card
In a common-area laundry room down the hall from the apartment, Trooper Bush discovered Marrero hiding inside of a dryer. Trooper Bush ordered Marrero to emerge, called Trooper Watson into the room, and attempted to handcuff Marrero. At that point, Marrero began to resist arrest by punching and kicking the troopers and trying to run away. In the resulting melee, Marrero — undeterred by multiple stuns from Trooper Bush’s taser— managed to pull the troopers into the hall. Sergeant Kenny, who had remained in the apartment to speak with Walters, joined the scuffle upon hearing the troopers’ calls for help, and the three officers finally managed to subdue Marrero. The officers each sustained minor injuries; Marrero emerged with several rug burns on his face, more than a dozen taser stuns, and complaints about pain in his shoulder, which had been injured prior to his encounter with the officers.
Once Marrero was secured, Trooper Bush returned to the laundry room, where he found 27.25 grams of crack cocaine in a washing machine. Police obtained a search warrant for the apartment, from which they recovered a total of 209.54 grams of marijuana in addition to the crack cocaine residue and other evidence found in the kitchen. Meanwhile, Marrero was examined by medical personnel, signed a waiver declining hospitalization, and was provided some water. Approximately half an hour after his arrest, Sergeant Kenny advised Marrero of his Miranda rights and Marrero agreed to speak. During the course of his conversation with Sergeant Kenny, Marrero admitted that: he had fought the officers because he did not want to go to prison; the crack cocaine seized from the laundry
On November 7, 2007, Marrero was indicted in the United States District Court for the Western District of Michigan on two counts: possession with intent to distribute five or more grams of cocaine base and possession with intent to distribute marijuana, both in violation of 21 U.S.C. § 841(a)(1). A magistrate judge issued a writ of habeas corpus ad prosequendum directing the state to surrender Marrero to federal custody. Marrero had his first appearance in federal court on November 15, 2007, and the magistrate judge appointed Attorney Richard E. Zambón to represent him.
After initially pleading not guilty, Marrero pleaded guilty to the crack cocaine charge pursuant to a plea agreement on January 3, 2008. In exchange for Marrero’s plea, the Government promised to dismiss the marijuana charge and to decline seeking an enhanced penalty based on Marrero’s previous felony drug convictions. The district court scheduled sentencing for April 21, 2008, and directed that a presentence investigation report (“PSR”) be prepared. Marrero received the PSR in March of 2008.
On April 14, 2008, Marrero filed a pro se letter with the district court purporting to contain the following four motions, reprinted verbatim: “(1) motion to withdraw guilty plea[;] (2) motion for failed to appointment a truth federal public defendar counsel violation of Sixth Ammendment[;] (3) motion for evidentuary hearing for ineffective assistance of councel[;] (4) motion for lock of jurisdiction.” Additionally, on April 17, 2008, Marrero filed a pro se document titled “petition for writ of habeas corpus and subjiciendum [sic],” which was based on the district court’s alleged lack of jurisdiction. The district court considered all of Marrero’s motions at a hearing on April 21, 2008, the date scheduled for sentencing. During this proceeding, the district court determined that Marrero wished to withdraw his guilty plea because he wanted “to challenge everything.” Marrero’s primary contentions seemed related to the district court’s jurisdiction — he believed that the federal court lacked jurisdiction over his case because he was originally charged and bound over for trial in the state court — and his potential sentence — he was convinced that a bill introduced in, but not passed by, the United States House of Representatives had eliminated the sentencing disparity between crack-and powder-cocaine offenses. Furthermore, the district court ascertained that Marrero wanted a new attorney because “me and him [Zambón] we don’t get along and everything.... [W]e always see for different point of view.” In particular, Marrero complained that Zambón had pressured him to plead guilty without allowing him to raise the above arguments to the court. He also objected to the fact that Zambón was not an employee of the federal defender’s office.
After attempting to explain to Marrero that his jurisdictional and sentencing claims lacked merit, the district court denied his request for substitute counsel, insisting that all of his conflicts with his attorney were based on his “total and complete misperceptions as to what the law is.” Nevertheless, the district court allowed Marrero to withdraw his guilty plea, though it denied all of his other motions. A jury trial on both counts of the indictment was scheduled to begin on May 28, 2008. On April 25, 2008, the Government filed a supplemental information listing Marrero’s three prior state-court convic
On May 8, 2008, Zambón filed a motion on behalf of Marrero stating that Marrero wanted to represent himself at trial. At the district court’s hearing on the motion, held on May 16, 2008, Marrero clarified that he wished to proceed without counsel only “[bjecause I can’t get a new lawyer.” In response to the district court’s inquiry into the nature of the conflict between Marrero and Zambón, Marrero insisted that “we got a conflict in every point” and “I don’t see how I can go in trial and be properly represented while me and my attorney we have a conflict from the day we started.” Specifically, Marrero again complained that Zambón refused to act on his previously raised objections to the district court’s jurisdiction and the disparate penalties applicable to crack- and powder-cocaine offenses. Marrero also objected to Zambon’s failure to challenge his indictment before a grand jury, as he believed he had a right to do. Finally, Marrero expressed dissatisfaction with Zambon’s response to his numerous requests for documents related to his case, saying he had belatedly provided him with the police report and did not procure for him the search warrant or the order to transfer him from state to federal custody.
After allowing Marrero to detail his conflict with Zambón, the district court concluded that “99 percent of it, if not a hundred percent of it, goes to [Marrero’s] misunderstanding of exactly how the federal system works vis-a-vis the state government.” The district court further explained as follows:
Mr. Marrero has clearly asked for the appointment of another federal defender or CJA attorney to represent him in this case. And one of the purposes of my inquiring as to whether what [sic] those sources of conflict were to get on the record exactly all of those sources of conflict. And to the extent that there isn’t any ambiguity there, the Court would find that based on the alleged conflicts that thе defendant has with Mr. Zambón, none of those either singularly or collectively would cause me to discharge Mr. Zambón and give the defendant another court-appointed lawyer, because as I’ve said before, nearly 100 percent of the alleged conflicts here represents the defendant’s fundamental misunderstanding of the law, which Mr. Zambón has clearly correctly provided to the defendant, but he chooses not to accept. So on the record before that we made at an earlier proceeding, and on this record, I would not allow Mr. Marrero to receive another lawyer, because there is no reason to discharge Mr. Zambón in the Court’s judgment.
The district court found that Marrero had “knowingly and intelligently and voluntarily waived his right to counsel,” and gave him permission to represent himself with Zambón as standby counsel. This arrangement remained in place throughout Marrero’s trial and sentencing.
On the eve of trial, May 27, 2008, Marrero filed a “motion to dismiss the indictment.” The district court construed the filing as a motion to suppress the 27.25 grams of crack cocaine recovered from the laundry room, the 209.54 grams of marijuana found in the apartment, and Marrero’s post-arrest statements to Sergeant Kenny. After holding an evidentiary hearing on these issues the morning of May 28, 2008, the district court denied Marrero’s motion to suppress on all grounds.
Marrero’s case proceeded to trial on the afternoon of May 28, 2008. The following day, the jury convicted Marrero on both counts of the indictment. On July 23, 2008, Marrero rеceived a revised PSR
Marrero timely appealed his conviction and sentence. Though Zambón initially filed an appearance as Marrero’s appellate counsel, this Court granted his motion to withdraw and appointed another attorney to represent Marrero on appeal.
ANALYSIS
Marrero appeals a number of the district court’s rulings affecting his conviction and sentence. First and foremost, he claims that the district court violated his Sixth Amendment right to counsel by refusing to appoint him substitute counsel, essentially forcing him into the Hobson’s choice of proceeding to trial with a counsel he mistrusted or representing himself. Marrero also challenges his conviction based on the denial of his motion to suppress evidence, the admission of testimony at trial describing his fight with police officers prior to his arrest, the Gоvernment’s use of a police report to refresh the recollection of a trial witness, and the sufficiency of the evidence supporting his conviction. Additionally, Marrero objects to his sentence, alleging that his sentencing hearing was convened in violation Rule 32(e)(2) of the Federal Criminal Rules of Procedure, that his sentence should be vacated and the case remanded under Kimbrough v. United States,
I. Sixth Amendment Right to Counsel
Marrero first asserts that the district court “forced [him] to forego counsel and proceed to trial pro-se [sic] against his wishes,” thereby violating his Sixth Amendment right to counsel. Although the district court conducted the model inquiry recommended by this Court whenever a defendant seeks to represent himself, and made an express finding that Marrero had knowingly and voluntarily waived his right to counsel, see United States v. McDowell,
The Sixth Amendment secures to a defendant who faces incarceration the right to counsel at all “critical stages” of the criminal process. United States v. Wade,
We review for abuse of discretion the district court’s decision that an indigent defendant failed to demonstrate good cause for substitute counsel. United States v. Mooneyham,
[1] the timeliness of the motion; [2] thе adequacy of the court’s inquiry into the defendant’s complaint; ... [3] whether the conflict between the attorney and client was so great that it resulted in a total lack of communication preventing an adequate defense[; and] [4] a balancing of the accused’s right to counsel of his choice and the public’s interest in the prompt and efficient administration of justice.
United States v. Jennings,
1. Timeliness
The timeliness of Marrero’s requests for a new attorney does not lend strong support to either Marrero’s claim or the district court’s decision. On the one hand, Marrero did seem to belatedly convey his dissatisfaction with Zambon’s representation to the district court. Marrero’s original motion for substitute counsel was filed almost fifteen weeks after the entry of his guilty plea — and only five days before his scheduled sentencing date — even though a major source of Marrero’s conflict with Zambón was that “[he] never want[ed] a plea bargain” and “[he] wantfed] to take [his case] to trial no matter what.” This Court has previously found that a comparable, ten-week delay renders a motion for
On the other hand, when considering both of Marrero’s motions, the district court did not express any concerns about their timeliness. Indeed, the district court granted Marrero’s motion to withdraw his guilty plea, filed on the same day as his first motion for substitute counsel, even though timeliness is also a factor in this Court’s review of those requests. See United States v. Ellis,
2. Adequacy of the District Court’s Inquiry
The record of the district court’s hearings on Marrero’s motion for substitute counsel and the motion requesting self representation suggest that the district court adequately inquired into the source of Marrero’s conflict with Zambón. This Court’s prior decisions indicate that, to meet this requirement, the district court simply must allow a defendant the opportunity to explain the attorney-client conflict as he perceives it. See United States v. Vasquez,
At the first hearing, the district court allowed Marrero to go on at length about his differences of opinion with Zambón as
This conclusion is unaffected by the fact that, at the second motion hearing, the district court launched into an inquiry as to whether Marrero was equipped to represent himself, see McDowell,
3. Nature of the Conflict Between the Attorney and the Client
After determining the nature of the conflict between Marrero and Zambón, the district court could have concluded that it was not “so great that it resulted in a total lack of communication preventing an adequate defense.” Jennings,
4. Prompt and Efficient Administration of Justice
The balance between Marrero’s right to the counsel of his choice and the public’s interest in the prompt and efficient administration of justice is, at most, equivocal, and perhaps evеn favors Marrero. From the district court’s perspective, “nearly 100 percent of the alleged conflicts [between Marrero and Zambón] represents the defendant’s fundamental misunderstanding of the law.” Therefore, the district court may have reasoned, “[g]ranting [Marrero’s] request for substitute counsel ... would actually have impeded the efficient administration of justice because his complaints about his attorney’s performance were frivolous.” Saldivar-Trujillo,
However, the district court proceedings undercut this line of reasoning. It is difficult to see how granting either of Marrero’s requests for a new attorney would have caused any additional delay in his case. Because the district court decided Marrero’s first motion for substitute counsel at the same time it permitted him to withdraw his guilty plea, this disposition coincided with a necessary rearrangement of the district court’s schedule for Marrero’s case. It was not as if Marrero requested new counsel in the middle of trial, at the expense of great time and effort already put forth by the Government. Cf. United States v. Sullivan,
5. Conclusion
In sum, neither the timeliness of Marrero’s requests for substitute counsel nor
II. Motion to Suppress
Marrero next appeals on several grounds the district court’s denial of his motion to suppress the drugs recovered from the apartment and laundry room, as well as his statements to police officers after his arrest. “When reviewing the district court’s decision regarding a motion to suppress, we review its factual findings for clear error and its legal conclusions de novo.” United States v. Hughes,
A. Basis for Arrest and Detention
Marrero first contends that there was no basis to detain and arrest him, and therefore the drugs subsequently recovered and his statements to police should be suppressed as fruit of the poisonous tree. See Wong Sun v. United States,
The Government argues that Marrero did not raise this issue in the district court, so our consideration of it is confined to, at most, plain error review. See United States v. Caldwell,
Nevertheless, Marrero’s claim fails on the merits, as the record reflects that Marrero’s arrest met the standards of the Fourth Amendment. “[A] warrantless аrrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed.” Devenpeck v. Alford,
B. Search of the Premises
Marrero next contends that the search of the premises after his arrest “clearly exceeded that necessary,” and so the crack cocaine recovered from the laundry room and the marijuana seized from the apartment should be suppressed. In essence, Marrero claims that the officers searched the apartment before they obtained a search warrant, that they searched the laundry room without obtaining a warrant at all, and that neither search fell within any exceptions to the warrant requirement.
As an initial matter, the Government challenges Marrero’s standing to object to a search of either the apartment or the laundry room, arguing that he lacked a legitimate expectation of privacy in either space. See Rakas v. Illinois,
As for the search of the apartment, the Government points to Marrero’s repeated statements in the district court denying that hе was living there, see, e.g., Trial Tr. vol. 2, 302, May 29, 2008, ECF No. 55 (accepting jury instruction submitted by the defense stating that “[t]he defense says the drugs did not belong to him and he did not live at the apartment in question, and he was never in the laundry room”), as evidence that he lacked the requisite expectation of privacy in the apartment. See Minnesota v. Carter,
C. Voluntariness of Statements
Finally, Marrero contests the admission of his post-arrest statements, claiming they were given involuntarily. See Oregon v. Elstad,
Marrero also challenges the admissibility of his confession under Miranda v. Arizona,
Alternatively, Marrero claims that “the record shows that [Marrero] has difficulty with the English language, thus there is a real possibility that Appellant did not understand [his Miranda ] rights.” Marrero did not pursue this argument in the district court, and it finds no support in the record. Marrero had sufficient knowledge of the English language to represent himself throughout trial and sentencing, which fact belies the assertion that he was unable to comprehend the Miranda warnings. The admission of Marrero’s post-arrest statements did not violate Miranda.
III. Testimony Regarding Marrero’s Struggle with Police
Marrero next asserts that the district court erred by allowing the arresting officers to testify about their struggle with Marrero when they found and tried to detain him. According to Marrero, this testimony constituted character evidence of “other crimes, wrongs, or acts,” and is therefore inadmissible under Rule 404(b) of the Federal Rules of Evidence. Because Marrero failed to object to this issue at trial, we review it for plain error under Rule 52(b) of the Federal Rules of Crimi
Rule 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” Fed.R.Evid. 404(b). “Where the challenged evidence is ‘intrinsic’ to, or ‘inextricably intertwined’ with evidence of, the crime charged, Rule 404(b) is not applicable.” United States v. Henderson,
Proper background evidence has a causal, temporal or spatial connectiоn with the charged offense. Typically, such evidence is a prelude to the charged offense, is directly probative of the charged offense, arises from the same events as the charged offense, forms an integral part of a witness’s testimony, or completes the story of the charged offense.
United States v. Hardy,
The circumstances under which police officers apprehended Marrero are inextricably intertwined with evidence of the possession crimes with which he was later charged. See Henderson,
IV. Use of a Police Report to Refresh a Witness’s Recollection
Marrero also challenges the district court’s overruling of his objection to the Government’s use of a search warrant tabulation report to refresh the recollection of a witness, Officer Danielle Brennan. Marrero argues that the court erred by allowing Officer Brennan to refresh her recollection with the report because it “was not made by her, nor was it adopted by her.” “We review for abuse of discretion the district court’s evidentiary rulings.” United States v. Wagner,
Rule 612 of the Federal Rules of Evidence authorizes a party to refresh a witness’s memory with a writing so long as the “adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.” Fed.R.Evid. 612. By its terms,
Furthermore, even if the district court erred by allowing Officer Brennan to refresh her recollection with the warrant tabulation report, any error is harmless. Officer Brennan’s refreshed testimony concerned where police had located the crack cocaine in the laundry room of the apartment complex. Specifically, she testified that the officers at the scene had found the crack cocaine in “[t]he far right washing machine.” At trial, the Government presented testimony of another officer, Trooper Chris Bush, that police recovered a quantity of crack cocaine from inside a washing machine in the laundry room. See Trial Tr. vol. 1, 120, May 28, 2009, ECF No. 54 (“[I]n the first dryer there, I opened it up or the first washing machine, I opened it up and looked down inside and I observed to me [sic] a large amount of crack cocaine, what I believed to be crack cocaine.”). Allowing Officer Brennan to confirm this testimony would be at most harmless error.
V. Sufficiency of the Evidence
Marrero also challenges his conviction as based on insufficient evidence, claiming that the Government did not prove that he had possession of the drugs recovered in the case or that he had the requisite intent to distribute the drugs. Though Marrero moved for a directed verdict at the close of the Government’s case, he did not renew this motion at the close of all proofs. “[W]here, as here, a defendant does not renew his motion for judgment of acquittal for insufficiency of the evidence at the close of all the proofs, appellate review is limited to determining whether there was a manifest miscarriage of justice.” United States v. Childs,
The record in this case is certainly not devoid of evidence of guilt, and includes testimony from the interrogating police officer relaying Marrero’s admissions that: the crack cocaine that police found in the laundry room was his; he had recently purchased $800 worth of cocaine from his supplier; he had cooked crack cocaine in the apartment about twenty minutes prior to the police’s arrival; and the marijuana found in the apartment was his and he intended to sell it. Additionally, a DEA drug expert testified that the amount of illegal drugs recovered in the case amounted to distribution quantities. Given this evidence, Marrero’s conviction does not amount to a manifest miscarriage of justice.
VI. Rule 32 Violation
Marrero next appeals the district court’s refusal of his request at sentencing for more time to review his PSR. Marrero argues that, because he represented himself at sentencing, he should have been given more time to review the PSR and navigate the “technical, complicated matters” that comprise the federal sentencing system. See also Sentencing Hr’g Tr. 7, Aug. 11, 2008, ECF No. 56 (“I didn’t have no time to work on [objections to the PSR]. I’m not professional. I don’t know what to do with this stuff. I needed time
Rule 32(e)(2) of the Federal Rules of Criminal Procedure provides that the probation officer must give the PSR to the defendant and his or her attorney “at least 35 days before sentencing unless the defendant waives this minimum period.” Fed.R.Crim.P. 32(e)(2). “This court has made it clear on several occasions that the district courts must be in literal compliance with the requirements of Rule 32.” United States v. Carter,
Marrero received his PSR on July 23, 2008, twenty days before his sentencing on August 11, 2008. Thus, the district court was not in strict compliance with Rule 32(e)(2). However, Marrero did not identify to this Court, or to the district court, any specific prejudice that he suffered from the court’s refusal to grant a continuance. In the district court, Marrero stated two objections to the PSR: an (erroneous) contention that federal law did not contain a disparity between the punishments imposed for drug crimes involving crack and powder cocaine and an objection to the imposition of a reckless-endangerment enhancement. He does not allege that his ability to argue these objections was negatively affected by his inability to prepare, nor does he point to any additional objections that he could have brought if given more time; neither does he challenge the accuracy of any facts recounted in the PSR. See United States v. Turner,
Furthermore, Marrero had received a prior version of his PSR four months earlier, when he was awaiting sentencing after pleading guilty. That PSR was identical to the operative PSR, save for adjustments to account for the withdrawal of his plea and the filing of the Government’s supplemental information. Cf. United States v. Burke,
VII. Procedural Objection to Sentence
Marrero also challenges his sentence, arguing that the district court failed to appreciate its authority “to disagree with the 100:1 craek[-to-powder-]co
In the proceedings below, Marrero repeatedly contested the application of the crack-cocaine disparity to his sentence. However, Marrero never argued to the district court that it should impose a downward departure based on a categorical disagreement with the Guidelines. Rather, he only argued for a downward departure based on his mistaken belief that Congress had eliminated the contested disparity. Additionally, Marrero responded negatively when, at the close of the sentencing hearing, the district court asked him whether he had “any other objections to the sentence ... imposed.” As a result, we review his request for remand under a plain-error standard. See United States v. Simmons, 587 F.3d 348, 354-58 (6th Cir.2009) (determining that plain-error review applied to defendant’s procedural argument for remand in light of Kimbrough, even though defendant’s counsel at sentencing had “devoted much of her argumеnt [at sentencing] to the idea that a downward variance was warranted ... because of the Guidelines’ disparate treatment of crack and powder cocaine offenses” and had, when asked if she had additional objections, raised a vague objection to the “procedural, substantive aspects” of defendant’s sentence), cert. denied, — U.S. -,
VIII. Fair Sentencing Act of 2010
In a supplemental brief, Marrero asserts that he is entitled to the benefit of the Fair Sentencing Act of 2010, Pub.L. 111-220, 124 Stat. 2372. Marrero was convicted of possessing 27.25 grams of crack cocaine. At the time of his sentencing and by reason of his prior convictions, this offense carried a ten-year mandatory minimum sentence and a maximum sentence of life imprisonment; the Fair Sentencing Act amends these penalties to a thirty-year maximum sentence with no mandatory minimum sentence. Though Marrero’s 360-month sentence does not exceed the maximum sentence assigned to his offense by the Fair Sentencing Act, Marrero nevertheless argues that we should remand his case for resentencing with reference to the adjusted penalties now reflected in § 841(b).
In United States v. Carradine,
CONCLUSION
For the foregoing reasons, we AFFIRM Marrero’s conviction and sentence.
Notes
. A Bridge Card is a debit card issued by the Michigan Department of Human Services to beneficiaries of its food assistance program.
. In a supplemental, pro se brief filed with permission of this Court, Marrero raises some additional claims challenging the validity of the search warrant and the federal government’s jurisdiction to prosecute him. We need not address those arguments because Marrero is represented by counsel. See United States v. Martinez,
. In fact, by the time of Marrero’s sentencing, the Guidelines had been amended to reduce the 100:1 disparity for most crack cocaine offenses. See U.S.S.G. app. C, amend. 706. Nevertheless, it is clear that Marrero's argument “applies with equal force to sentencing decisions under the new crack-cocaine Guidelines,” and remand is warranted if the district court did not understand that it "may categorically reject and vary from the new Guidelines based on policy disagreements with those Guidelines.” United States v. Johnson,
Dissenting Opinion
dissenting.
The majority is mistaken in its conclusion that there was no Sixth Amendment violation in this case. A fair reading of the record makes clеar that Defendant was denied the assistance of counsel at his criminal trial, and therefore his sentence and conviction should be vacated and the case remanded. Because the majority refuses to recognize the district court’s constitutional error, I respectfully dissent.
BACKGROUND
On November 7, 2007, a federal grand jury indicted Defendant with one count of possession with the intent to distribute crack cocaine and one count of possession with the intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1). Defendant, who is uneducated and indigent, requested counsel, and the district court thereafter, on November 16, 2007, appointed attorney Richard E. Zambón to represent Defendant. After initial pleas of not guilty, Defendant pleaded guilty on January 3, 2008 to one count of possession with the intent to distribute crack cocaine in exchange for the government’s promise to dismiss the remaining count. The district court scheduled a sentencing hearing for April 21, 2008.
Over the next few months, the relationship between Defendant and counsel broke down to such a degree that Defendant pleaded with the district court to assign him a new attorney. On April 13, 2008, Defendant filed a pro se motion that requested the appointment of new counsel, as well as permission to withdraw his guilty plea. At a hearing on April 21, 2008, Defendant again requested new counsel, explaining that he and his lawyer “don’t get along” and that his lawyer has failed to adequately represent him by, for example, misinforming him about matters relevant to his guilty plea. The district court did not find good cause for substitution of counsel, and informed Defendant categorically that he was “not going to get another attorney.” The district court did, however, permit Defendant to withdraw his guilty plea, even though the court determined that Defendant’s desire to withdraw his plea was based on a misunderstanding of the law. In considering Defendant’s requests to substitute counsel and withdraw his guilty plea, the district court never suggested that the timeliness of either request was of concern to the court.
The district court did not set a trial date at the hearing on April 21, 2008, but instead gave the government nearly a week to file supplemental documents to establish a prior conviction. On April 25, 2008, the same day the government filed its supplemental documents, the district court issued a scheduling order that set a trial date of May 28, 2008.
On May 8, 2008, Defendant’s counsel filed a motion stating that Defendant wished to proceed without counsel. The district court considered the motion at a hearing on May 16, 2008, during which Defendant again requested new counsel. The court found that Defendant had a fundamental misunderstanding of the law, and therefore dismissed his concerns about his counsel as meritless. The court advised Defendant, that he would not be assigned a new attorney, and presented him with the Hobson’s choice of either proceeding with the counsel he neither desired nor
With that, the district court led Defendant blindly down the road to self-representation by summarily converting the proceedings into a Faretta hearing, by which the court sought to extract a knowing and voluntary waiver of counsel. See Faretta v. California,
Defendant, now proceeding without counsel, appeared at a pretrial conference on May 27, 2008, and complained that he had been “forced to represent myself.” The district court summarily dismissed Defendant’s contention. The case proceeded to trial on May 28, 2008, during which Defendant again complained that he did not have an attorney. On May 29, 2008, a jury found Defendant guilty of both counts charged in the indictment. On August 11, 2008, following a hearing in which Defendant remained unrepresented by counsel and objected on that basis, the district court sentenced Defendant to 360 months of imprisonment.
DISCUSSION
No fair reading of the record suggests that Defendant ever desired to represent himself, and as is clear from the trial transcript, hе was neither prepared nor equipped to do so. This is not surprising; as the late Justice Frank Murphy once explained:
The constitutional right to assistance of counsel is a very necessary and practical one. The ordinary person accused of crime has little if any knowledge of law or experience in its application. He is ill prepared to combat the arsenal of statutes, decisions, rules of procedure, technicalities of pleading and other legal weapons at the ready disposal of the prosecutor. Without counsel, many of his elementary procedural and substantive rights may be lost irretrievably in the intricate legal maze of a criminal proceeding. Especially is this true of the ignorant, the indigent, the illiterate and the immature defendant.
Canizio v. People of the State of New York,
The Sixth Amendment guarantees a criminal defendant the right to the assistance of counsel. See, e.g., Kansas v. Ventris,
We review the denial a motion to substitute appointed counsel for an abuse of discretion. See, e.g., United States v. Mooneyham,
(1) the timeliness of the motion, (2) the adequacy of the court’s inquiry into the matter, (3) the extent of the conflict between the attorney and client and whether it was so great that it resulted in a total lack of communication preventing an adequate defense, and (4) the balancing of these factors with the public’s interest in the prompt and efficient administration of justice.
United States v. Mack,
In this case, based on the application of these factors, we should find that the district court committed a clear error of judgment in denying Defendant’s motion to appoint substitute counsel. Recognizing that a district court has wide discretion in this regard, it is clear, based on the record, that no reasonable application of these factors would support the majority’s decision to affirm the decision of the district court. I now turn to the factors.
A. Timeliness of the motion
The majority simply concludes that the timeliness of Defendant’s motion to substitute counsel “does not lend strong support to either Marrero’s claim or the district court’s decision.” (Maj. Op. at 464.) As explained below, the majority’s imprecise and equivocal conclusion finds little support in the record.
This is not a case where Defendant sought to substitute counsel on the eve оf or during trial. Cf. United States v. Orris,
Instead, this is a case where the district court’s actions suggest that Defendant’s request for a new lawyer was not untimely. No trial date had been set. The district court granted Defendant’s contemporaneous motion to withdraw his guilty plea, and provided the government nearly a week to file supplemental documents, at which point the district court then issued a scheduling order setting a trial date for May 28, 2008. To the extent the majority is correct in observing that Defendant “did seem to belatedly convey his dissatisfaction with” his counsel to the district court, (Maj. Op. at 464-65), such a fact should have no bearing on our analysis because the district court never raised any concerns about the timeliness of Defendant’s request for new counsel.
To the contrary, the district court’s contemporaneous decision to grant Defen
Accordingly, the timeliness of Defendant’s motion to substitute counsel weighs in his favor.
B. Adequacy of the district court’s inquiry
The district court’s inquiry into the factual basis for Defendant’s request for a new lawyer was inadequate, and the majority’s finding to the contrary is flawed. Although the district court inquired into the initial source of the conflict, and perhaps, as the majority states, allowed Defendant to “go on at length about his differences of opinion with [his then-counsel] as to his plea bargain,” (Maj. Op. at 465-66), the district court did not take the additional and critical step of exploring whether the attorney-client relationship had broken down due to a complete lack of trust and confidence. To the extent the district court purported to engage in an independent inquiry, its inquiry was of questionable value because the court seemed to rely heavily on the statements of Defendant’s former counsel without also properly considering the surrounding circumstances and contentions of Defendant. The evidentiary value of the statements of Defendant’s former counsel are suspect in this case because Defendant disputed the quality of his former counsel’s legal represеntation and specifically stated that he and his attorney had a “conflict from the day we started.”
The district court never considered whether Defendant might have better understood the law had it been explained to him by a lawyer who may have been able to establish some measure of effective communication with Defendant, or with whom he may have been able to develop trust and confidence. The court failed to make sufficient inquiry into the working relationship between attorney and client; whether the apparent collapse of this relationship was exacerbated by factors unrelated to Defendant’s apparent misunderstanding of the law; and whether the collapse of the relationship, whatever the source, affected Defendant’s ability to mount an adequate defense. See, e.g., United States v. Adelzo-Gonzalez,
Although Defendant stated at various times that he wished to proceed without counsel, these statements were in direct response to well-articulated, leading questions posed by the district court in an apparent effort to extract Defendant’s
Even after Defendant selected the latter choice simply to rid himself of counsel he regarded as unsatisfactory and deficient, he continued to protest “that what I really wanted is a new attorney.” (5/16 Hear’g Tr. at 21.) The prosecutor apparently recognized this as a problem, stating, “Your Honor ... I have some concerns about what he is really asking for. He’s mentioned at least three times now that he wants a new attorney.” (Id.) Although we have held that “by rejecting all [ ] options except self-representation,” a defendant “necessarily [chooses] self-representation,” King v. Bobby,
Accordingly, the district court’s inquiry into the matter was woefully inadequate and misleading. This factor thus weighs in favor of Defendant.
C. Extent of conflict between attorney and client preventing an adequate defense
The extent of the conflict between Defendant and counsel was significant, and this factor weighs in Defendant’s favor. Although the record should have been better developed, the record that does exist reveals a complete breakdown of the attorney-client relationship. See, e.g., United States v. Jennette,
The magnitude of the conflict is further evidenced by Defendant’s decision to entirely forgo representation rather than be represented by his then-counsel, even though Defendant was admittedly ignorant of the law and desired a lawyer. See United States v. Lagunas,
D. Public interest in the prompt and efficient administration of justice
The final factor is the prompt and efficient administration of justice. This factor weighs in Defendant’s favor. The majority does not disagree, but again, as with its analysis of the timeliness issue, the majority provides an imprecise evaluation of the issue, stating simply that the factor “is, at most, equivocal, and perhaps even favors Marrero.” (Maj. Op. at 467.) Such an ambiguous conclusion is supported by neither the record nor common sense. In fact, the majority’s reasoning suggests that this factor weighs in Defendant’s favor even though the majority is loathe to admit as much.
As an initial matter, substitution of counsel when it was requested would not have caused any meaningful delay. Defendant first requested a new lawyer on April 13, 2008, nearly two weeks before the district court would issue a scheduling order on April 25, 2008 for trial on May 28, 2008. Although the district court did not relieve counsel until two weeks before trial, if two weeks were sufficient for an uneducated defendant, proceeding pro se, to prepare for trial, then a new attorney certainly would have been able to prepare within that time frame as well. If this were not the case, the district court’s way of proceeding would raise serious constitutional questions about whether the district court provided Defendant sufficient time to prepare his defense.
Even if substitution of counsel would have resulted in meaningful delay, the record does not suggest that any such delay would have prejudiced the relevant public interest: no trial date had been scheduled; the court permitted Defendant to withdraw his plea of guilty; and the court adjourned proceedings for nearly a week to permit the government to file supplemental papers. The record likewise does not suggest any prejudice whatsoever to the government. Cf. United States v. Sullivan,
To the extent that the relevant public interest is implicated, it weighs in Defendant’s favor. If the district court had appointed substitute counsel, the public would have benefitted from the efficiencies inherent in a trial where both parties are represented by counsel. See, e.g., United States v. Bertoli,
Accordingly, the public interest in the expeditious administration of justice was not aided by the district court’s denial of
E. Weighing the relevant factors for abuse of discretion
Although the Sixth Amendment does not guarantee an indigent defendant the right to counsel of choice, see Mooneyham,
Any fair reading of the record makes clear that the district court committed a clear error of judgment in denying Defendant’s motion to substitute counsel. This is not merely because the district court misapplied the law. Rather the district court so unreasonably and egregiously misapplied the law that its decision cannot be excused even under our most deferential standards of review.
Since the deprivation of the right to counsel in violation of the Sixth Amendment is a “structural error,” we presume prejudice and should set aside Defendant’s conviction and sentence on this basis. See, e.g., United States v. Gonzalez-Lopez,
CONCLUSION
For the reasons discussed above, Defendant’s conviction was obtained in violation of the Sixth Amendment. Because the majority erroneously concludes to the contrary, I respectfully dissent.
. (See, e.g., 5/16 Hear’g Tr. at 3 ("He hasn't been doing anything for me.”); id. at 8 ("You know what — Excuse me, I ask you for the new attorney.... And see he — Me - and him, we got a conflict in every point, so if I have a conflict on every point with my attorney, so I don’t see how I cаn go in trial and be properly represented while me and my attorney we have a conflict from the day we started, so that’s not fair.”); id. at 11 ("I never want to plea bargain. [My lawyer] knows since the beginning me and him we argue from the date that we were talking about that. I want to take it to trial no matter what.”); 4/21 Hear'g Tr. at 20 (”[M]e and him we don't get along and everything. We see — we always see for different points of view.”).)
. (See, e.g.,.5/16 Hear’g Tr. at 2 (stating that Defendant was "suffice it to say, unhappy with my strategy, my plans for trial,” and would rather represent himself than continue with his current counsel).)
. Because a finding of a Sixth Amendment violation would require us to reverse Defendant’s conviction, this dissent does not reach the other claims of error raised on appeal and rejected by the majority, other than to note, with regard to Defendant’s challenge to his sentence, that the district court appears to have committed serious procedural error. It is undisputed that the district court failed to insure that Defendant was provided with the pre-sentence report "at least 35 days before sentencing" as required by Rule 32(e)(2) of the Federal Rules of Criminal Procedure. Defendant objected on this basis at the sentencing hearing, and the district court recognized the error, but proceeded with the hearing anyway. (See Sentencing Tr. at 7.) The district court thereafter stated that Defendant's ignorance of federal sentencing law was "one of the hazards of representing yourself.” Perhaps so, but the district court's non-compliance with the Federal Rules of Criminal Procedure should not also be such a hazard.