Lead Opinion
Opinion by Judge BERZON; Concurrence by Judge FISHER.
This case requires us to clarify the standard for considering a criminal defendant’s motion to discharge his privately retained counsel and to proceed with a different, court-appointed lawyer instead.
Trinidad Rivera-Corona pleaded guilty to carrying a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). During the plea colloquy, Rivera-Corona stated that he understood the terms of the plea agreement; that his retained attorney, Nicholas Marchi, answered all of his questions about the agreement before he signed it; and that he was satisfied with Marchi’s representation. Rivera-Corona also testified that nobody had forced him to enter the plea. The district court did not, however, advise Rivera-Corona of his “right to be represented by counsel — and if necessary have the court appoint counsel — at trial and at every other stage of the proceeding,” as required by Federal Rule of Criminal Procedure 11(b)(1)(D).
Before sentencing, Marchi moved to withdraw and requested that new counsel be appointed. He supported his motion with an affidavit stating:
I was retained by the defendant. The Defendant has requested a hea[r]ing for a new attorney. He apparently maintains that he can no longer work with me. He has claimed that I have been ineffective. In the interest of justice and to allow defendant new counsel, [in] whom he would apparently have more faith, I would request that the Court appoint new counsel and allow me to withdraw.
At a hearing, Marchi explained that Rivera-Corona had called his office about a week after the change of plea hearing and communicated, in Marchi’s words, that “I either scared him or he was afraid of me or I didn’t do my job.” The court asked Marchi whether he had been retained to represent Rivera-Corona, to which Marchi responded that he had been retained for
RIVERA-CORONA: I would like to know if you can appoint another attorney, because I don’t get along with this attorney.
THE COURT: What are the reasons for your not getting along with this attorney?
RIVERA-CORONA: Well, how could I say? He said if we went with a jury he wanted $5,000 more, and that’s why. Otherwise, he was going to, like, prosecute my family, and that’s why I got scared.
THE COURT: Is there anything additional?
RIVERA-CORONA: And that’s why I want to know if you can give me another chance to continue fighting my case.
THE COURT: Are there any other facts that I should consider?
RIVERA-CORONA: For now, that’s what I’m saying, and that’s all.
THE COURT: Have you given all of the information that you believe supports your request for different counsel?
RIVERA-CORONA: Well, I wonder if you can just provide me with another attorney so I can continue — -how would I say? [J]ust continue fighting my case.
The district court did not ask Marchi whether Rivera-Corona’s allegations were true and did not inquire into Rivera-Corona’s financial eligibility for court-appointed counsel. Instead, right after the colloquy quoted, the district court, interpreting Rivera-Corona’s request to include both a motion to withdraw his guilty plea and a request for new counsel, denied both, relying on Rivera-Corona’s statement during his plea colloquy that he was satisfied with his representation. The district court judge told Rivera-Corona that he had the right to hire new counsel, but that “absent a complete and utter breakdown” in the attorney-client relationship he saw no grounds to “have counsel appointed at public expense, particularly since the last remaining item before[him was] sentencing.” Rivera-Corona responded that he had no money to hire a new lawyer. Mar-chi represented Rivera-Corona at his sentencing hearing. This appeal followed.
We review a district court’s denial of a motion for substitution of counsel for abuse of discretion. United States v. Adelzo-Gonzalez,
A defendant who can hire his own attorney has a different right, independent and distinct from the right to effective counsel, to be represented by the attorney of his choice. See United States v. Gonzalez-Lopez,
The district court in this case to some degree recognized this distinct right to choose retained counsel. The court told Rivera-Corona that “you have the right, if you wish, to hire counsel ... if you have the funds to do so” to replace or supplement Marchi, and did not indicate that there was any extent-of-conflict limitation on that right. But the district court treated as fundamentally different the question whether Rivera-Corona could replace retained counsel with appointed counsel.
Remarkably, we have no presently binding case law dictating the standards applicable in the situation in which a district court considers a defendant’s motion to discharge his retained counsel and be represented by a court-appointed attorney. We do, though, have controlling case law in the obverse situation — where a defendant seeks to replace appointed with retained counsel.
Because an additional constitutional right is at stake, such motions have never been governed by the three-part extent-of-conflict analysis applicable to defendants seeking new court-appointed counsel. Unless the substitution would cause significant delay or inefficiency or run afoul of the other considerations we have men
The only published case in this circuit that arose in the current posture, in which a defendant seeks to substitute appointed for retained counsel, is Bland v. California Department of Corrections,
Schell thus overruled Bland’s unexplained application of the extent-of-conflict standard, albeit on grounds not applicable here. As Schell concerned a motion to substitute appointed counsel on habeas review and did not implicate the constitutional right to counsel of choice, it did not establish a rule of analysis applicable to
In rejecting Schell’s contention that the trial court’s abuse of discretion in denying his motion required us to grant his writ, we emphasized that Schell’s qualified right to choice of retained counsel was not at issue, and on that ground distinguished Bland’s holding that denial of the substitution motion was per se prejudicial. Id. at 1025-26. Bland unequivocally held that the denial of the defendant’s request to replace his retained counsel with a court-appointed attorney implicated the qualified right to choice of counsel.
The district court here never inquired into Rivera-Corona’s eligibility for appointed counsel, finding no grounds “to have counsel appointed at public expense, particularly since the last remaining item before me is sentencing.” But the Criminal Justice Act expressly provides for appointment of counsel “[i]f at any stage of the proceedings ... the court finds that the [defendant] is financially unable to pay counsel whom he had retained.” 18 U.S.C.A. § 3006A(c); see also Doherty v. United States,
As to the nature of the inquiry that should have been made, we agree with the Second Circuit’s articulation:
Reviewing a district court’s determination of financial eligibility for mid-case appointment under § 3006A(e) ... requires a three-fold determination. First, did the district court conduct an “appropriate inquiry” into the defendant’s financial eligibility? Second, if the district court conducted an appropriate inquiry, was the court correct in its ultimate conclusion of financial eligibility? Third, if the district court conducted an appropriate inquiry and defendant is financially eligible for mid-case ap*982 pointment, did the district court err in its weighing of the “interests of justice”?
United States v. Parker,
We note that requiring a retained counsel to continue to represent the defendant even if the defendant cannot pay him and no longer wants him, which is what seemingly happened here, is no substitute for appointed counsel paid with public funds and so could not, without more, be in the “interests of justice.” Such an unpaid lawyer is likely, consciously or subconsciously, to resent the transformation of an agreement to represent a defendant for pay into an involuntary pro bono arrangement, and therefore to seek to end the representation as expeditiously as possible. That, indeed, is precisely what Rivera-Corona alleged happened here with respect to Marchi’s advice whether to plead guilty. Moreover — as also alleged here — an involuntarily unpaid lawyer may influence the defendant’s litigation choices by expressing an intention to seek fees from relatives or friends, or from the defendant should he later obtain funds. Our system for providing compensated lawyers where the defendant cannot afford to compensate counsel himself eliminates the opportunity for such extraneous influences on criminal proceedings.
Nor was the district court entitled to rely on Rivera-Corona’s statement during his plea colloquy that he was satisfied with Marchi’s representation. According to Rivera-Corona, Marchi demanded money that his client presumably did not have as a condition of going to trial, and was prepared to “prosecute” — presumably sue— Rivera-Corona’s family if he didn’t pay it. If true, these facts could support a motion to set aside his plea, as Rivera-Corona’s statement of satisfaction with Marchi at the colloquy could be explained by the same facts. See United States v. Gonzalez,
The implication of Rivera-Corona’s remarks regarding why he sought appointed counsel is that Marchi never suggested that he be appointed as counsel, or that Rivera-Corona seek new, appointed coun
Given all these defects in the district court’s handling of Rivera-Corona’s request, we vacate Rivera-Corona’s sentence.
VACATED and REMANDED.
Notes
. Rivera-Corona's guilty plea included a waiver of his right to appeal, but his contention that his plea was involuntary raises the possibility that the appeal waiver was involuntary and so not enforceable. See United States v. Pena,
. The majority opinion was joined by five of the eleven judges on the en banc panel, but four additional members of the en banc court agreed that the trial court’s refusal to permit Bradley to substitute a retained attorney for her court-appointed counsel violated her Sixth Amendment right to counsel of choice. See Bradley,
. Schell’s statement that the extent-of-conflict standard was "of course ... the correct methodology for reviewing federal cases on direct appeal,”
. We note that Judge Fisher in his concurrence essentially agrees with us in the end as to the proper standard applicable here: If 18 U.S.C. § 3006A(c) applies, "the district court should have conducted an 'appropriate inquiry’ into Rivera-Corona's financial eligibility for mid-case appointment of counsel and an adequate analysis of whether counsel should have been appointed in the 'interests of justice.' ” Concurrence at 12169. Although Judge Fisher suggests Rivera-Corona may not have adequately invoked 18 U.S.C. § 3006A(c), Concurrence at 12169, § 3006A(c) simply provides the standard governing when a court may appoint counsel mid-proceedings if a person so requests and asserts that he is financially unable to pay retained counsel. So we can see no reason Rivera-Corona was required to invoke this provision independently of his request for appointed counsel.
. We also note that a defendant's right to appointed counsel under Federal Rule of Criminal Procedure 44 includes “defendants unable to obtain counsel for reasons other than financial.” Argersinger v. Hamlin,
. The government concedes that the district court failed to advise Rivera-Corona during his plea colloquy that he had the right to proceed to trial and to have court-appointed counsel if necessary, but contends that the error was harmless because Rivera-Corona was informed of this right during his initial appearance and at both arraignments. The government’s reliance on United States v. Vonn,
. We note that Rivera-Corona would be entitled to remand even under the Mendez-Sanchez standard. That test requires consideration of the adequacy of the district court's inquiry into the defendant's complaint. The district court in this case made only cursory inquiries following Rivera-Corona’s allegations against Marchi. The allegations raised the possibility of an irreconcilable conflict, loss of trust, or a potential financial conflict of interest. The district court, however, asked only if “there [was] anything additional?” and if “there [were] any other facts [to] consider?" The court failed to seek further clarification from Rivera-Corona, nor did it ask Marchi to confirm, deny, or explain the allegations. Consequently, the court's inquiry in this case failed to establish a “sufficient basis for reaching an informed decision.” See, e.g., United States v. Adelzo-Gonzalez,
Concurrence Opinion
concurring;
I concur in the result, but disagree with some of the reasoning offered by the majority opinion.
I. Sixth Amendment Right to Counsel
I agree with the majority’s assessment that the Sixth Amendment right to counsel actually encompasses several rights, including the right to choice of retained counsel, the right to effective assistance of counsel and the right to self-representation. I part company, however, with the majority’s conclusion that “we have no presently binding case law dictating the standards applicable in the situation in which a district court considers a defendant’s motion to discharge his retained counsel and be represented by a court-appointed attorney.” Maj. Op. 979.
Appointed/Retained to Retained Substitution. By contrast, when a defendant seeks to replace existing counsel — whether retained or appointed — with retained counsel, she ordinarily need not establish good cause. See, e.g., United States v. Torres-Rodriguez,
This dichotomy exists because the defendant seeking to replace appointed counsel with appointed counsel and the defendant seeking to replace existing counsel with retained counsel are relying on different aspects of the Sixth Amendment right to counsel. A defendant who moves to replace appointed counsel with appointed counsel must rely on her Sixth Amendment right to effective assistance of counsel, which requires a showing of good cause — the constructive denial of counsel. See, e.g., United States v. Moore,
On the other hand, a defendant who moves to replace existing counsel with retained counsel may rely on either her right to choice of counsel or her right to effective assistance of counsel. “When there is no threat of a delay in the proceedings,” she may, consistent with her right to choice of counsel, freely substitute one retained counsel for another, without showing that “the conflict between the defendant and his counsel was so great that it resulted in a total lack of communication preventing an adequate defense.” Torres-Rodriguez,
Retained to Appointed Substitution. Unlike the appointed-to-appointed and retained- or appointed-to-retained scenarios discussed above, the question presented here is what standard applies to a defendant’s motion to replace retained counsel with appointed counsel. Some courts have held that this scenario is governed by a defendant’s right to choice of counsel, such that a defendant can freely discharge retained counsel and obtain appointed counsel without establishing good cause. In People v. Ortiz,
In the instant case, there are two actions of the court at issue: its refusal to allow Sanchez[, retained counsel,] to withdraw and its refusal to appoint substitute counsel. Were the only issue that of the appropriateness of the court’s refusal to permit withdrawal, Sanchez having been retained privately, there might be some question. As we said in United States v. Woodard,291 F.3d 95 , 107 (1st Cir.2002), a defendant is not ordinarily dependent on the court’s permission to replace retained counsel. But here the two actions merge, since defendant and his family ran out of funds to retain other private counsel and defendant sought court appointed counsel.
Id. at 46-47; see also id. at 47 (requiring the defendant, who had moved to replace retained counsel with appointed counsel, to show that “ ‘the conflict between the defendant and his counsel was so great that it resulted in a total lack of communication preventing an adequate defense’ ”) (quoting United States v. Allen,
Were we writing on a clean slate, as the majority believes we are, we would have to make a choice among the approaches exemplified in Ortiz and Motar-Santana. We are not, however, writing on a clean slate. We have already held that, for purposes of the Sixth Amendment, a motion to substitute retained counsel with appointed counsel requires a showing of good cause. See Schell v. Witek,
I am not persuaded by the majority’s attempts to avoid Bland and Schell. First, the majority’s suggestion to the contrary notwithstanding, Schell did not overrule Bland in any respect relevant here. See Maj. Op. 980-81. Although Schell overruled Bland as applied to habeas review, Schell expressly and specifically confirmed Bland’s good cause standard as applied to “federal cases on direct appeal” — the issue presented here. Schell,
Second, the majority’s conclusion that Schell “does not control in the current circumstances” because it addressed “substitution of appointed counsel” reflects a fundamental misunderstanding of Schell. Maj. Op. 981 n. 3. The majority apparently concludes that nothing Schell had to say could be binding here because Schell involved a motion to replace appointed counsel with appointed counsel rather than, as in this case, a motion to replace retained counsel with appointed counsel. That suggestion, as well as the majority’s labeling of the relevant discussion in Schell as “dicta,” misses the point. In Schell, a case involving appointed-to-appointed substitution, we went en banc to overrule Bland, a case involving retained-to-appointed substitution. Schell is therefore premised on the proposition that motions to substitute existing counsel with appointed counsel are governed by the same standard regardless of whether existing counsel is retained (as in Bland) or appointed (as in Schell and Walker). A proposition necessary to the holding cannot be dicta. See, e.g., City of Sausalito v. O’Neill,
For purposes of the Sixth Amendment analysis, therefore, I would hold that we are bound by circuit precedent to review Rivera-Corona’s motion to replace retained counsel with appointed counsel under the same good cause standard we apply to motions to substitute one appointed
I emphasize that I would apply the good cause standard because I believe we are required to do so by the doctrine of stare decisis. See, e.g., In re Tippett,
II. Statutory Rights under the Criminal Justice Act
As the majority explains, Rivera-Corona may also have a right to substitution of counsel under the Criminal Justice Act, which provides in relevant part: “If at any stage of the proceedings, including an appeal, the United States magistrate judge or the court finds that the person is financially unable to pay counsel whom he had retained, it may appoint counsel ... and authorize payment ..., as the interests of justice may dictate.” 18 U.S.C. § 3006A(c). This provision “obliges the judge to continually reevaluate the need for appointed counsel as the underlying proceeding progresses.” In re Boston Herald, Inc.,
Rivera-Corona did not explicitly raise § 3006A(c) in the district court or on appeal. Assuming that Rivera-Corona nonetheless adequately invoked the provision, I agree with the majority that the district court should have conducted an “appropriate inquiry” into Rivera-Corona’s financial eligibility for mid-case appointment of counsel and an adequate analysis of whether counsel should have been appointed in the “interests of justice.” 18 U.S.C. § 3006A(b)-(c); see also United States v. Parker,
To conclude, I part company with the majority’s conclusion that, for purposes of
. As noted above, I recognize that Schell concerned habeas review rather than direct federal review. Schell’s holding that retained-to-appointed and appointed-to-appointed substitution are subject to the same legal standards, however, does not distinguish between the two and therefore is binding on direct review as well.
. On remand, the court’s good cause inquiry should consider not only whether there was an irreconcilable conflict between Rivera-Corona and his attorney but also any other evidence tending to establish that proceeding with retained counsel would have resulted in ineffective assistance of counsel. In particular, as relevant here, the district court should consider whether Rivera-Corona’s inability to continue paying his retained counsel established a basis for substitution. See Ortiz, 275 Cal.Rptr. 191,