U.S. v. Ademaj

• Decision Date: 06 October 1998
• Docket Number: No. 97-2352,97-2352
• Citation: 170 F.3d 58
• Parties: UNITED STATES of America, Appellee, v. Fredi ADEMAJ, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 58

170 F.3d 58

UNITED STATES of America, Appellee, v. Fredi ADEMAJ, Defendant, Appellant.

No. 97-2352.

United States Court of Appeals, First Circuit.

Heard Oct. 6, 1998.

Decided March 4, 1999.

John J. Barter for appellant.

Theodore B. Heinrich, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief for appellee.

Before LYNCH, Circuit Judge, CYR, Senior Circuit Judge, and LIPEZ, Circuit Judge.

CYR, Senior Circuit Judge.

Defendant Fredi Ademaj challenges various district court rulings relating to his trial and conviction on three counts of distributing cocaine, see 21 U.S.C. § 841(a)(1), and two counts of conspiring to distribute cocaine, see id. § 846. We affirm the district court judgment in all respects.

I BACKGROUND

The evidence showed that Ademaj had been involved in a wholesale cocaine distribution operation in the Boston area. During May 1996 the Drug Enforcement Agency ("DEA") began using a cooperating witness, nicknamed "Bob," to investigate Stefanos Meraklis, Ademaj's brother-in-law. During the DEA investigation, "Bob" engaged in undercover cocaine transactions with both Meraklis and Meraklis' cocaine supplier. Some transactions were tape-recorded and Ademaj served as a go-between in certain transactions. For the most part, the recorded conversations were conducted in Greek.

II DISCUSSION

Ademaj presents six claims, which we discuss in turn.

A. Constructive Deprivation of Right to Trial Counsel

Initially, Ademaj filed a pro se motion requesting replacement counsel three days prior to trial, arguing that since he and his court-appointed counsel spoke different languages their inability to communicate resulted in a constructive deprivation of his Sixth-Amendment right to trial counsel, in that "there was no opportunity for effective trial preparation." Cf. Strickland v. Washington, 466 U.S. 668, 685-87, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Thereafter, on the first day of trial, court-appointed counsel moved for a continuance on the ground that "it was evident that [Ademaj] did not understand the federal court procedures, as [counsel] had previously explained to this Albanian defendant in English...." Counsel further represented to the court: "Unfortunately, I don't think that Mr. Ademaj has understood everything I have indicated to him about the trial process." Although counsel acknowledged that an interpreter had been made available previously, he added that initially he had thought "Ademaj had understood certain things and now I'm not sure if he ... actually did." For his part, Ademaj asserted that he was not prepared to proceed to trial because there was evidence which he had not yet been able to obtain. Asked what further evidence he sought, Ademaj simply responded: "[M]y evidence." ¹

The district court heard and rejected these motions the day trial was scheduled to begin. Shortly thereafter, as the petit jury entered the courtroom to begin the trial, defense counsel once again requested a continuance, which was denied. The court then informed During jury empanelment, Ademaj indicated that he wished to proceed without counsel. The court responded that he would be allowed to proceed without counsel, but that replacement counsel would not be appointed. After Ademaj advised the court that he had no confidence in court-appointed counsel, the request for replacement counsel was denied once again and Ademaj decided against proceeding pro se.

Ademaj and counsel that an interpreter would be available should they wish to confer further prior to trial.

As an initial matter it is not at all clear that a criminal defendant represented by court-appointed counsel may assert a "constructive" denial-of-counsel claim under the Sixth Amendment separate and apart from the conventional ineffective-assistance-of-counsel claim. Ademaj cites no apposite authority, nor have we found any. As a conceptual matter, moreover, such a claim would appear redundant in the instant context, given that ineffective assistance by court-appointed counsel would constitute a denial of the Sixth Amendment right to counsel in the sense that the trial itself could not be relied upon to produce a just result in such a circumstance. See Scarpa v. DuBois, 38 F.3d 1, 8 (1st Cir.1994).

At bottom, then, this constructive denial-of-counsel claim is simply an ineffective-assistance-of-counsel claim wherein Ademaj asks the court to presume prejudice. We decline to do so. Instead, we inquire whether the absence of an interpreter prior to trial actually prejudiced Ademaj's defense. See United States v. Cronic, 466 U.S. 648, 659 n. 26, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (dicta) (noting: "[a]part from [certain limited] circumstances ... there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt."). ²

We have held that a presumption of prejudice under the Sixth Amendment is "the exception, not the rule and it can be employed only if the record reveals presumptively prejudicial circumstances such as an outright denial of counsel, a denial of the right to effective cross-examination, or a complete failure to subject the prosecution's case to adversarial testing." Scarpa, 38 F.3d at 12. ³ As we observed in Scarpa, "... the Court's language in Cronic was driven by the recognition that certain types of conduct are in general so antithetic to effective assistance for example, lawyers who leave the courtroom for long stretches of time during trial are unlikely to be stellar advocates in any matter that a case-by-case analysis simply is not worth the cost of protracted litigation." Id. at 12. By contrast, the Cronic rationale is not implicated in the present case, since Ademaj understands and speaks considerable English and only belatedly even alleged that pretrial communications with counsel were difficult. Thus, the instant claim lends itself to no brightline per se rule.

The capacity to converse in English, and any concomitant need for an interpreter, represent fact-intensive inquiries implicating such considerations as the defendant's intelligence, education, and the length of time he has been exposed to an English- Because the determination is likely to hinge upon various factors, including the complexity of the issues and testimony presented during trial and the language ability of the defendant's counsel, considerations of judicial economy would dictate that the trial court, coming into direct contact with the defendant, be granted wide discretion in determining whether an interpreter is necessary.

speaking environment, as well as the relevant English-language skills of the defendant and any foreign-language skills of defense counsel. As we cautioned some time ago in a similar context:

United States v. Carrion, 488 F.2d 12, 14-15 (1st Cir.1973) (citing Perovich v. United States, 205 U.S. 86, 91, 27 S.Ct. 456, 51 L.Ed. 722 (1907)); see also United States v. Sosa, 379 F.2d 525, 527 (7th Cir.1967); cf. United States v. Arthurs, 73 F.3d 444, 447 (1st Cir.1996) ("The district judge, who heard the defendant speak, had considerable discretion in these circumstances to determine if Arthurs' English testimony was intelligible to the jury.").

Furthermore, the right to an interpreter during pretrial preparation is less than clear in the present circumstances, since Ademaj was afforded an interpreter immediately before and throughout the trial and only now belatedly asserts that one was needed even earlier in pretrial consultations with court-appointed counsel. Accordingly, we must consider whether any difficulty in pretrial communications with court-appointed counsel resulting from the alleged language barrier could have impinged upon Ademaj's right to counsel during the trial preparation stage. Cf. Carrion, 488 F.2d at 14 ("the right to confront witnesses would be meaningless if the accused could not understand their testimony, and the effectiveness of cross-examination would be severely hampered. The status of the right becomes less certain [where] the defendant has some ability to understand and communicate, but clearly has difficulty.")

i. The Degree of Difficulty in Communicating

The record on appeal would not support a contention that Ademaj was totally unable to communicate with counsel at any stage in the proceedings. More to the point, his extensive correspondence and numerous colloquies with the trial judge in the English language belie any claim that pretrial communications with court-appointed counsel were so severely impeded as to deprive him of the right to counsel at any relevant time. Furthermore, although Ademaj raised many pretrial issues below, including claims that he needed more time to prepare for trial and did not understand court procedures, his complaints with counsel were premised on the assertion that he was not being afforded a sufficiently vigorous defense.

The only time Ademaj even arguably broached the instant claim was on the first day of trial, by requesting new counsel and a continuance. Under questioning by the district court, however, Ademaj responded that he was not ready for trial because he did not have certain evidence, then added through the interpreter:

COURT INTERPRETER: [H]e's not prepared he said, your Honor. He's had a problem understanding Mr. Laymon.

COURT: What is it that you want me to do to get prepared?

COURT INTERPRETER: He wants another lawyer.

COURT: Why do you want another lawyer?

COURT INTERPRETER: He doesn't believe in Mr. Laymon. He said he has no confidence in him.

Prior to the first day of trial, Ademaj mentioned no language or other communication problem, either with counsel or in regard to trial preparations generally. Moreover, in two letters to his attorney, written in English approximately three weeks prior to trial and made available to the district court, there was no reference to any problem with cour...