U.S. v. Hughey

• Decision Date: 21 July 1998
• Docket Number: No. 96-50925,96-50925
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frasiel HUGHEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 423

147 F.3d 423

UNITED STATES of America, Plaintiff-Appellee, v. Frasiel HUGHEY, Defendant-Appellant.

No. 96-50925.

United States Court of Appeals Fifth Circuit.

July 21, 1998.

Richard L. Durbin, Jr., Asst. U.S. Atty., Michael Robert Hardy, San Antonio, TX, for Plaintiff-Appellee.

Nancy Blair Barohn, Dallas, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before WISDOM, SMITH and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Frasiel Hughey was convicted on eleven criminal counts relating to his fraudulent possession and use of counterfeit business checks and credit accounts. ¹ Hughey appeals his convictions and certain aspects of his sentence, arguing (1) that he was denied his Sixth Amendment qualified right to counsel, (2) that count 2 of the indictment was invalid, and (3) that the district court's order of restitution lacked ample support. We affirm Hughey's convictions on count 1 and counts 3 through 11, reverse Hughey's conviction on count 2, and remand with instructions to enter a modified judgment reducing the amount of restitution ordered.

HUGHEY'S CONSTITUTIONAL RIGHT TO COUNSEL OF CHOICE

I.

Hughey first maintains that he is entitled to a new trial with respect to all eleven counts of conviction. He does not challenge the truth of the facts underlying his conviction. Rather, Hughey maintains that the district court's refusal to accommodate defense counsel's conflicting obligation in a later-acquired criminal matter deprived him of his constitutional right to defense counsel of his own choosing. A fairly detailed recitation of the development of this case in the district court is essential to an understanding of this claim.

Hughey was indicted in a two-count indictment in July 1995. Trial was set for October 30, 1995. Hughey's first counsel of record, Douglas McNabb, secured his release on bond and filed twenty-eight pretrial motions seeking to discover the factual and legal basis of the government's case against Hughey. The profusion of motions filed by the industrious McNabb effectively stalled the case and forced the government to reconsider its strategy. By early October, it was apparent that neither side would be prepared to try the case on October 30.

On October 2, the parties filed a joint motion for continuance of trial, noting that Hughey's many pretrial motions were still pending, that plea negotiations were ongoing, and that the government might file a superseding indictment. The district court granted the parties' joint request for continuance and reset the trial for January 8, 1996.

On December 6, the government filed a superseding indictment charging eleven counts. Hughey terminated his relationship with McNabb and filed a motion to substitute attorney David Botsford, which was granted December 14. With trial less than one month away, Botsford's first action was to request a continuance of the deadline for pretrial motions until January 8, and a continuance of trial from January 8 until after January 31, 1996. The government did not oppose the motion. The district court granted the motion, setting a pretrial motion deadline of January 8 and a trial date of February 5. The parties later filed an agreed motion to extend the deadline for filing pretrial motions from January 8 until January 15. The record does not reflect that the district court ever ruled upon that motion.

On January 16, 1996, one day after the requested deadline, Botsford filed seven pretrial motions. On January 17, Botsford filed a new motion for continuance. Botsford maintained that continuance was required to resolve pending discovery issues, to hire a handwriting expert, and to accommodate scheduling conflicts. The scheduling conflicts identified by Botsford were a February 6 appellate briefing deadline before our Court and a firm trial date of February 20 in With regard to the Moore case, Botsford reported that he initially agreed to represent Moore on January 10, subject to making adequate financial arrangements. Botsford further reported that adequate financial arrangements were finalized January 16, and that he planned to make his first appearance in Moore on January 17, the same day the motion for continuance of Hughey was being filed. Botsford suggested, however, that his representation of Moore might also be conditioned upon a continuance in Hughey, by stating that he had informed Moore of the potential for a scheduling conflict and the need to seek a continuance in Hughey. Botsford nonetheless asked the district court to "continue the case" until the Moore trial was complete. That trial was scheduled to begin February 20 and continue at least through April.

United States v. Moore, a criminal matter pending before the federal district court in Austin, Texas.

The government responded that it did not oppose a continuance until a date certain in April 1996. The government acknowledged that it was considering a second superseding indictment. The government also recognized that ongoing discovery disputes and Botsford's appellate deadline both provided ample support for continuing the case until April. The government objected, however, to Botsford's request that the case be indefinitely continued pending completion of Botsford's engagement in Moore. Given the need to resolve numerous pending discovery issues and the possibility of a second superseding indictment before trial in April, the government was understandably concerned, not only about Botsford's participation at trial, but about his availability to participate in the resolution of pretrial matters.

The government noted that Botsford himself created the alleged scheduling conflict by accepting responsibility for Moore's case after Hughey was set for trial and with full knowledge that his work for Moore created a potential conflict with his earlier commitment to Hughey. The government argued that Botsford's desire to represent Moore at trial should not excuse his presence either at pretrial hearings or the trial of Hughey's case in April. The government also requested that the district court order Botsford to provide written assurance that he could resolve Hughey's case in April, irrespective of the Moore trial, or to withdraw from the case.

On January 25, the district court granted a third continuance of Hughey's trial until April. On January 29, the district court entered an order formally setting a pretrial motions hearing for April 13 and trial for April 25. The district court accepted the government's position that Botsford's involvement in Moore was not a legitimate reason for delaying pretrial proceedings or for continuing the trial of Hughey's case. Accordingly, the district court ordered Botsford to either confirm his availability to resolve Hughey's case in April or withdraw from Hughey's case.

On February 5, Botsford filed a conditional motion to withdraw. Botsford advised the district court that he was unable to confirm his availability for April 1996 and reurged his earlier position that Hughey's case should be continued until the Moore trial was complete. Absent an order embracing that position, Botsford stated that he felt compelled to withdraw. Botsford attached Hughey's signed (but unverified) statement objecting to Botsford's withdrawal as a violation of his Sixth Amendment right to counsel of choice. On February 12, the government responded to Botsford's conditional motion to withdraw, stating its preference that Botsford withdraw if, as Botsford stated, the only alternative would be an indefinite trial date contingent upon Botsford's completion of his later-arising commitments in Moore.

On February 15, the district court granted Botsford's conditional motion to withdraw and ordered Hughey to select alternative counsel. Hughey then hired his third attorney, Jack Pytel, who first appeared on February 22.

Hughey's trial was eventually reset on two more occasions. On April 10, the district court sua sponte reset the trial from April 25 to May 13. That delay was occasioned by Hughey's arrest for further criminal activity while released on bond and the need to consider issues raised by the government's second One week prior to the final motion for continuance, the parties appeared in the district court to argue pretrial motions. One week after the motion for continuance was filed, the parties appeared again to litigate whether Hughey's bond should be revoked. Hughey's trial eventually began on July 15, 1996.

superseding indictment. Hughey's trial was postponed a fifth and final time when the district court granted Hughey's unopposed motion to continue the trial date until July. Although Hughey's formal motion for continuance was based in large part on Pytel's scheduling conflicts, the record reflects that the parties were also actively engaged in resolving pretrial and bond revocation issues.

II.

The Sixth Amendment guarantees the assistance of counsel in all criminal prosecutions. U.S. CONST. amend. VI. That guarantee has long been construed to include a criminal defendant's qualified right to retain counsel of the defendant's own choosing. E.g., Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988); Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 1615-18, 75 L.Ed.2d 610 (1983); Powell v. State, 287 U.S. 45, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932); United States v. Paternostro, 966 F.2d 907, 912 (5th Cir.1992).

Hughey argues that trial lawyers are not fungible, and therefore, the Sixth Amendment must be construed to afford him the right to insist upon Botsford's services in particular. Hughey also claims that the district court erred by (1) ordering Botsford to either make a firm commitment to Hughey's case or withdraw, and (2) refusing to grant a continuance until an indefinite date tied only to Botsford's completion of his obligations in Moore's trial.

Hughey miscomprehends both the scope of the relevant right and the...