399 F.3d 924 (8th Cir. 2005), 03-3487, United States v. Gonzalez-Lopez

Docket Nº:03-3487.
Citation:399 F.3d 924
Party Name:UNITED STATES of America, Plaintiff/Appellee, v. Cuauhtemoc GONZALEZ-LOPEZ, also known as Tomas, Defendant/Appellant.
Case Date:March 08, 2005
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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399 F.3d 924 (8th Cir. 2005)

UNITED STATES of America, Plaintiff/Appellee,

v.

Cuauhtemoc GONZALEZ-LOPEZ, also known as Tomas, Defendant/Appellant.

No. 03-3487.

United States Court of Appeals, Eighth Circuit.

March 8, 2005.

Submitted: Sept. 16, 2004

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[Copyrighted Material Omitted]

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Karl W. Dickhaus, argued, St. Louis, MO, for appellant.

Assistant U.S. Atty., Tiffany G. Becker, argued, St. Louis, MO, for appellee.

Before WOLLMAN, RICHARD S. ARNOLD, 1 and BYE, Circuit Judges.

BYE, Circuit Judge.

Cuauhtemoc Gonzalez-Lopez was convicted by a jury of conspiring to distribute more than 100 kilograms of marijuana, in violation of 21 U.S.C.§§ 841(a)(1), 846. On appeal, he argues his conviction should be vacated because the district court violated his Sixth Amendment right to be represented by the counsel of his choice at trial by refusing to grant his attorney's applications for admission pro hac vice. Finding a Sixth Amendment violation, we vacate the conviction and remand the case for a new trial.

I

We begin our discussion with a presentation of the background facts. 2 On January 7, 2003, Gonzalez-Lopez was charged with conspiring to distribute more than 100 kilograms of marijuana in the Eastern District of Missouri. Immediately after the arrest, some of his family members hired Texas attorney John Fahle to represent him on the criminal charges. On January 8, 2003, Fahle appeared at the defendant's detention hearing and arraignment. Shortly after the arraignment, Gonzalez-Lopez telephoned California attorney Joseph Low to discuss the possibility

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of Low either assisting Fahle or assuming the representation. Apparently he had learned of Low's trial prowess from the defendants in an earlier unrelated drug conspiracy trial in the Eastern District of Missouri. At Gonzalez-Lopez's request, Low met with him at the jail in Farmington, Missouri, between January 8 and 10, 2003. Within ten days of this meeting, Gonzalez-Lopez hired Low.

On March 4, 2003, Low traveled to Missouri to attend an evidentiary hearing in the case conducted by the magistrate judge. Fahle also attended the evidentiary hearing on behalf of Gonzalez-Lopez. As of March 4, 2003, Low had not entered his appearance in the case. The magistrate judge initially accepted Low's provisional entry and permitted Low to participate in the hearing based on Low's assurance he would file a motion for admission pro hac vice. However, during the hearing the magistrate judge rescinded the provisional approval after Low violated the court's rule restricting the cross-examination of a witness to one lawyer by passing notes to Fahle.

Gonzalez-Lopez informed Fahle on March 11, 2003, that he wanted Low to be his sole attorney and asked Fahle to stop representing him. On March 17, 2003, Low filed an application for admission pro hac vice to the Eastern District of Missouri. The district court denied Low's application the next day without providing any oral or written explanation. On April 14, 2003, Low filed a second application for admission pro hac vice. The district court denied the application again without explanation. On April 30, 2003, Low filed a writ of mandamus in our court seeking to compel the district court to grant Low's motion for admission pro hac vice. The application for a writ was dismissed. Additionally, Low applied by general application for admission to the Eastern District of Missouri, which was not ruled on until after the conclusion of Gonzalez-Lopez's trial.

On April 25, 2003, Fahle filed motions to continue the trial, withdraw as counsel, and for a show cause hearing for sanctions against Low. In the motion for a show cause hearing, Fahle accused Low of violating the rules of professional conduct, specifically Missouri Rule 4-4.2, 3 by communicating with Gonzalez-Lopez about the criminal prosecution without Fahle's permission even though Low knew Fahle represented Gonzalez-Lopez in the matter. At the hearing that day, the court granted Gonzalez-Lopez until May 5, 2003, to retain new counsel and continued the trial setting until July 7, 2003. Gonzalez-Lopez, through Low, retained St. Louis attorney Karl Dickhaus as local counsel for trial. On May 2, 2003, Dickhaus entered his appearance for Gonzalez-Lopez, and the court granted Fahle's motions to continue the trial date and leave to withdraw.

The first time the district court provided Gonzalez-Lopez with an explanation for the denial of Low's applications for admission pro hac vice was on June 3, 2003, in the court's memorandum and order denying Low's motion to strike Fahle's motion for sanctions. In the June 3, 2003, memorandum and order, the district court stated:

In denying [the motions for admission pro hac vice], the Court considered Mr. Low's conduct before the Court in United States v. Serrano et al., 4:01CR450 JCH. The record in that proceeding indicates

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that Mr. Low contacted a criminal defendant with pre-existing legal representation, interfered with the criminal defendant's representation, and attempted to circumvent the Court's ruling on a continuance of the trial setting.

In the same order, the district court noted: "Mr. Low has sought admission into this Court by every means available. He has been denied admission pro hac vice because of allegations of ethical improprieties--the very improprieties that are the subject of the motion for sanctions."

On July 7, 2003, the first day of trial, Low again moved for admission and was denied. Dickhaus requested Low be permitted to sit at the table for the defense to assist Dickhaus, who was much less experienced with criminal trials. The district court denied the request, ordered Low to remain in the audience, and forbid Low to have any contact with Dickhaus during the trial proceedings. A United States Marshal sat between Dickhaus and Low during the trial. Gonzalez-Lopez was also unable to meet with Low in the morning before the start of trial, during breaks, during lunch, or after the trial concluded for the day. Low was denied access to the detention facility where Gonzalez-Lopez was housed in the evenings. However, after he complained to the district court about being prohibited from receiving visits from Low in the evenings, the district court ordered the visits to be permitted. He was able to meet with Low on the last night of the trial. The jury found Gonzalez-Lopez guilty of the sole count of the indictment on July 11, 2003.

On August 23, 2003, the district court ruled in favor of Fahle on the motion for sanctions against Low. The court held Low violated Missouri Rule 4-4.2 by communicating with Gonzalez-Lopez about the criminal charges against him without Fahle's permission even though Low knew Fahle represented him. Additionally, in the same memorandum and order, the district court stated it had properly denied Low's motions for admission pro hac vice. The court explained: "These denials were premised on the conduct of Mr. Low that surfaced during the Serrano trial, specifically Mr. Low's meeting with represented codefendants without the prior consent of their attorneys."

II

Gonzalez-Lopez raises several arguments on appeal challenging his conviction and sentence. We address only the primary argument raised by the defendant challenging the district court's denial of admission pro hac vice to the attorney he selected to represent him in the criminal proceeding.

A non-indigent criminal defendant's Sixth Amendment rights encompass the right to be represented by the attorney selected by the defendant. Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988); Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932). As a general rule, " 'defendants are free to employ counsel of their own choice and the courts are afforded little leeway in interfering with that choice.' " United States v. Lewis, 759 F.2d 1316, 1326 (8th Cir. 1985) (quoting United States v. Cox, 580 F.2d 317, 321 (8th Cir. 1978)). "The right to privately retain counsel of choice derives from a defendant's right to determine the type of defense he wishes to present." United States v. Mendoza-Salgado, 964 F.2d 993, 1014 (10th Cir. 1992) (citations omitted); United States v. Laura, 607 F.2d 52, 56 (3d Cir. 1979) (citations omitted). "Lawyers are not fungible, and often the most important decision a defendant makes in shaping his defense is his selection of an attorney." Mendoza-Salgado, 964 F.2d at 1015-16

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(internal quotations and citations omitted). Furthermore, " '[a] defendant's right to the counsel of his choice includes the right to have an out-of-state lawyer admitted pro hac vice.' " United States v. Ries, 100 F.3d 1469, 1471 (9th Cir. 1996) (quoting United States v. Lillie, 989 F.2d 1054, 1056 (9th Cir. 1993)). Thus, "a decision denying a pro hac vice admission necessarily implicates constitutional concerns." Panzardi-Alvarez v. United States, 879 F.2d 975, 980 (1st Cir. 1989) (citation omitted).

"[W]hile an accused who is financially able to retain counsel of his own choosing must not be deprived of a reasonable opportunity to do so, the right to retain counsel of one's choice is not absolute." United States v. Vallery, 108 F.3d 155, 157 (8th Cir. 1997) (citing Urquhart v. Lockhart, 726 F.2d 1316, 1319 (8th Cir. 1984)). "The right to choice of counsel must not obstruct orderly judicial procedure or deprive courts of their inherent power to control the administration of justice." Id. (citing United States v. Gallop, 838 F.2d 105, 108 (4th Cir. 1988)). Thus, the district court must carefully balance the defendant's right to be represented by the counsel of his choice against the court's interest in " 'the orderly administration of justice.' " Urquhart, 726 F.2d at 1319 (quoting Linton v. Perini, 656 F.2d 207, 209 (6th Cir. 1981)). This issue typically arises when a criminal defendant seeks to substitute...

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