111 F.3d 705 (9th Cir. 1997), 94-50292, United States v. Amlani

Docket Nº:94-50292, 95-50215 and 95-50603.
Citation:111 F.3d 705
Party Name:Serv. 2789, 97 Daily Journal D.A.R. 4917 UNITED STATES of America, Plaintiff-Appellee, v. Altaf AMLANI, aka: William Montgomery; aka: John Strong, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Altaf AMLANI, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Altaf AMLANI, aka: William Montgomery; aka: John
Case Date:April 16, 1997
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 705

111 F.3d 705 (9th Cir. 1997)

Serv. 2789,

97 Daily Journal D.A.R. 4917

UNITED STATES of America, Plaintiff-Appellee,

v.

Altaf AMLANI, aka: William Montgomery; aka: John Strong,

Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Altaf AMLANI, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Altaf AMLANI, aka: William Montgomery; aka: John Strong,

Defendant-Appellant.

Nos. 94-50292, 95-50215 and 95-50603.

United States Court of Appeals, Ninth Circuit.

April 16, 1997

Argued and Submitted Feb. 3, 1997.

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David A. Katz, Katz & Associates, Los Angeles, California, for defendant-appellant.

Ronald L. Cheng, Assistant United States Attorney, on appeal, Los Angeles, California, for plaintiff-appellee.

Appeals from the United States District Court for the Central District of California, William J. Rea, District Judge, Presiding. D.C. Nos. CR-93-00524-WJR, CR-93-00524-WJR-1.

Before: PREGERSON, REINHARDT, and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

Altaf Amlani appeals his conviction and sentence for wire fraud and conspiracy. This court has jurisdiction under 28 U.S.C. § 1291. We find that Amlani's contention regarding disparagement of counsel, if established as true in an evidentiary hearing, justifies a new trial. We find that none of Amlani's other contentions warrants reversal of his conviction or sentence. Accordingly, we REMAND this case for further findings regarding allegations of disparagement of Amlani's original counsel.

BACKGROUND

Amlani was the president and owner of Finer Images ("FI"), a telemarketing company from the Los Angeles area. FI's employees would tell prospective customers that they were eligible for valuable prizes, such as cars, cash, a home entertainment center, and/or jewelry. To claim their prize (or prizes), the customers were told they needed to buy advertising specialties, such as pens, T-shirts, and key chains, which were imprinted with the customer's business name, address, and phone number. These purchases ostensibly would eliminate gift taxes by making the prize a promotional award rather than a gift.

FI's sales pitches misrepresented the customers' chance of winning the grand prizes, namely the cars and cash. The evidence presented at trial showed that FI awarded only inexpensive watches or jewelry. Although FI claimed these prizes were worth over $1000 apiece, the evidence showed that the wholesale value was $38-49 for each bracelet and $69 for each watches. Customers that ordered once were subjected to additional high-pressure sales pitches, with more promises of valuable prizes (referred to at trial as "reloading" the customers). The grand prizes, other than the jewelry of questionable value, were never awarded. Cynthia Mai, an FI employee, testified that no customers

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had any chance of receiving the valuable grand prizes.

The Federal Bureau of Investigation ("FBI") began an undercover investigation, with agents posing as representatives of a company that produced a "cold call" machine to make initial sales pitches to potential customers and as a telemarketer acting as a reference for the machine company. During the operation, FBI agents interviewed Amlani and other FI employees, gathering potentially damaging statements. After a demonstration of the machine to FI, FBI agents then posed as potential customers responding to the machine's cold calls. FI employees made misrepresentations to the FBI agents in these "hot tests."

Amlani and two associates were indicted on one count of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 371, and twenty counts of wire fraud, in violation of 18 U.S.C. § 1343.

Following a jury trial, Amlani and his codefendant Hepburn were convicted on all counts of the indictment. On May 10, 1994, Amlani was sentenced to fifty-seven months in prison, in addition to three years supervised release, restitution, a fine, and a special assessment. Amlani timely appealed his conviction. He obtained two limited remands from this court to litigate post-trial motions, and he timely appealed the district court's orders on those motions as well.

ANALYSIS

I. Alleged Disparagement of Amlani's Attorney

Amlani claims he was deprived of his right to counsel because the prosecutor repeatedly disparaged his original chosen trial counsel, David Katz, in front of him. Amlani alleges that the government essentially told him and his wife that Katz did not care about Amlani, was not competent, and could not prevent Amlani's conviction. Amlani claims this disparagement violated the Sixth Amendment because it caused him to change to a different and less competent counsel for trial. The Government denies the disparagement.

We review de novo whether the alleged disparagement violated the Sixth Amendment if it caused Amlani to fire his chosen trial counsel and hire a replacement. See United States v. Benlian, 63 F.3d 824, 826 (9th Cir.1995) (reviewing de novo an allegation of ineffective assistance of counsel in violation of the Sixth Amendment). Amlani's allegations are presumed true for purposes of this appeal because the district court did not hold an evidentiary hearing. United States v. Irwin, 612 F.2d 1182, 1187 (9th Cir.1980).

We have previously held that while the harmless error rule may not apply to a Sixth Amendment violation, the existence of prejudice is relevant to determine whether an alleged interference with the attorney-client relationship deprives a defendant of a right to counsel. United States v. Glover, 596 F.2d 857, 863-64 (9th Cir.1979); cf. United States v. Morrison, 449 U.S. 361, 364-65, 101 S.Ct. 665, 667-68, 66 L.Ed.2d 564 (1981) (leaving open question of whether prejudice was required to establish any Sixth Amendment violation because the Court found that in any event the dismissal of the indictment was an inappropriate remedy absent showing of prejudice).

The district court denied Amlani's motion to vacate the conviction on this ground because Amlani did not allege that his replacement trial counsel was inadequate. Thus, the district court held that Amlani failed to show the required prejudice necessary to establish a Sixth Amendment violation.

Amlani contends that he need not show prejudice in the form of inadequacy of replacement counsel to prove a Sixth Amendment violation, relying on Glover, 596 F.2d at 861; People v. Moore, 57 Cal.App.3d 437, 129 Cal.Rptr. 279, 281-82 (1976); and Commonwealth v. Manning, 373 Mass. 438, 367 N.E.2d 635, 638 (1977). Rather, he claims that he was prejudiced by the government intentionally undermining his confidence in his chosen counsel, which caused him to abandon his counsel of choice and to retain different counsel for trial.

The Government responds that Amlani was not prejudiced for two reasons. First, it argues that the alleged disparagement did not involve communication between the prosecutor

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and the represented defendant outside the presence of defense counsel. Thus, it argues that Amlani's chosen counsel had the opportunity to neutralize all the alleged disparagement. Second, it claims that Amlani was not prejudiced because he was represented by a different attorney who provided adequate representation.

We are faced with an issue not squarely presented to previous courts: does disparagement of counsel in front of a defendant and in the counsel's presence violate the Sixth Amendment if it causes the defendant to retain different counsel? 1 The prosecutor's alleged comments disparaged defense counsel (like Manning, which found prejudice, and unlike Glover, which did not) and so allegedly caused Amlani to retain different counsel. On the other hand, the comments were not made outside the presence of defense counsel or his associate.

We are unpersuaded that the distinction between whether defense counsel was present is determinative. The government's ex parte communication with a criminal defendant may aggravate the potential for harm, but disparagement is inappropriate even in the presence of defense counsel. Accordingly, we turn to the question of prejudice.

We are mindful that "the essential aim of the [Sixth] Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988). Thus, the Sixth Amendment right to select one's counsel may be limited in several important respects: a defendant is not entitled to representation by one who is not a licensed attorney; the counsel cannot be involved in a previous or ongoing relationship with an opposing party; and a defendant is not entitled to an attorney he or she cannot afford or who for other reasons declines to represent the defendant. Id. We hold that the right is not so limited, however, that the availability of adequate replacement counsel allows the government effectively to veto defendant's choice of counsel by intentionally undermining his confidence in the attorney-client relationship through disparagement. 2

Amlani need not make a showing that his replacement counsel was inadequate in order to establish prejudice. Prejudice can result from "government influence which destroys the defendant's confidence in his attorney." Irwin, 612 F.2d at 1187 (finding no prejudice because the defendant produced no evidence of disparagement). See also Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984) (noting that prejudice can be...

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