United States v. McKeighan
| Decision Date | 17 July 2012 |
| Docket Number | No. 08–3204.,08–3204. |
| Citation | 685 F.3d 956 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. James A. McKEIGHAN, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
OPINION TEXT STARTS HERE
Jessica R. Kunen, Lawrence, KS, appearing for Appellant.
James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Office of the United States Attorney for the District of Kansas, Topeka, KS, for Appellee.
Before LUCERO, HOLLOWAY, and MATHESON, Circuit Judges.
In 2007, James McKeighan was convicted on four federal charges relating to his possession of firearms, marijuana, and methamphetamine. He now raises three claims of error. First, he argues that the Government and the district court forced his attorney of choice to withdraw, violating his rights under the Sixth Amendment to the U.S. Constitution. Second, he asserts that jurors fell asleep during his trial, depriving him of the right to an impartial jury under the Sixth Amendment. Finally, Mr. McKeighan argues that the district court erred when it enhanced his sentence for obstruction of justice.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm Mr. McKeighan's conviction and sentence.
In April 2006, law enforcement officers executed a warrant to search a storage unit rented by Mr. McKeighan in Kansas City, Kansas. Inside the unit, officers discovered firearms, ammunition, approximately 109 pounds of marijuana, 40.7 grams of methamphetamine, and drug paraphernalia. Officers also seized $41,170 in U.S. currency, as well as documents and credit cards in Mr. McKeighan's name.
As a result, Mr. McKeighan was arrested and indicted on four counts related to the possession of drugs and firearms.1
After his initial retained counsel withdrew, Mr. McKeighan retained Texas attorney Baltazar Salazar (“Attorney Salazar”). On June 19, 2006, Kansas attorney Melanie Morgan (“Attorney Morgan”), acting as local counsel, moved for Attorney Salazar to appear pro hac vice in the U.S. District Court for the District of Kansas. On June 30, 2006, the district court granted the pro hac vice motion.
On July 26, 2006, the Government filed a motion seeking to withhold production of discovery to Mr. McKeighan until it received more information about Attorney Salazar's fee. The Government explained that before Attorney Salazar was retained, Mr. McKeighan told law enforcement and pretrial services that he had no income or money. Attorney Salazar's fee was $25,000.2
In its motion, the Government alleged that Attorney Salazar had rejected its request that he identify the date of his retention, the amount of his fee, the method of payment, the name of any third party who paid Mr. McKeighan's fee, and the financial institution and account number into which the fee was deposited. The Government asserted it had “substantial evidence that [Mr. McKeighan was] engaging in continuing criminal activity” and that it was concerned that Attorney Salazar's representation of Mr. McKeighan might pose a conflict of interest. ROA, Vol. 1, Doc. 29, at 2. According to the Government, it had “substantial evidence that would allow for the fee paid to [Attorney Salazar] to be subject to criminal seizure and forfeiture.” Id.
At a hearing on August 21, 2006, the district court stated it lacked information to rule on the Government's motion. The court permitted the Government to provide a sealed ex parte submission to support the motion by September 1, 2006. The court scheduled a status conference for September 11, 2006, to consider any Government submission.
On August 31, 2006, Attorney Morgan moved to withdraw as Mr. McKeighan's local counsel, stating that “a conflict of interest has arisen in the case.” ROA, Vol. 1, Doc. 33, at 1. The next day, the Government provided its sealed ex parte submission to the court concerning the fees paid to Attorney Salazar and the potential conflicts of interest in his representation of Mr. McKeighan.
At the September 11, 2006 hearing, the district court began by granting Attorney Morgan's motion to withdraw. Consequently, the court explained that it could not consider any other motions—including the Government's motion to withhold discovery and its supporting ex parte submission—until Attorney Salazar obtained local counsel to support his pro hac vice admission.
Attorney Salazar had received several federal grand jury subpoenas regarding his fee information. He told the court it would be difficult to secure local counsel “because if I explain ... that the prosecutor's going after the funds, that I have been given three grand jury subpoenas, no one's going to want to touch the case, your Honor.” ROA, Vol. 2, Pt. 2, Doc. 341, at 7. He felt he was “being strongarmed into withdrawal.” Id.
Attorney Salazar then explained that he had placed Mr. McKeighan's fee in a trust account and feared that “if a federal grand jury subpoena or money seizure shows up in my trust account, it will automatically ring bells to the Texas State Bar” and “[t]he bank will not want to touch me.” Id. at 12. He stated, “I don't have any problem placing that money, my attorneys' fees, in the court's registry ... if the court orders.” Id. He repeated multiple times his willingness to place Mr. McKeighan's fee in the court's registry.
The district court responded, “Mr. Salazar, it would seem like it might be helpful to you as well as the [G]overnment if [the court] made the order as you have suggest[ed] that would trigger you transferring those fees to the registry of the court.” Id. at 14 (emphasis added). The court then ordered the transfer of the attorney fee into the court's registry. Attorney Salazar clarified for the record that he was “putting [the fee] in the registry of funds voluntarily, not per the [grand jury] subpoena.” Id. at 46 (emphasis added). On September 13, 2006, Attorney Salazar transferred Mr. McKeighan's fee into the court's registry.3
At the hearing, the district court also informed Mr. McKeighan of four conflicts of interest that could arise were he to continue with Attorney Salazar as his counsel.
First, Mr. McKeighan's longtime girlfriend, Leigh Bledsoe, had delivered Mr. McKeighan's fee to Attorney Salazar, and she could be charged as a co-conspirator who had delivered drug proceeds to pay Attorney Salazar's fee.
Second, if the funds came from someone in a higher position in the alleged criminal enterprise, Attorney Salazar's loyalty to Mr. McKeighan might be compromised.
Third, the Government might determine that Attorney Salazar engaged in illegal activity in accepting the fee, which would make it “virtually impossible” for him to continue his representation. Id. at 24.
Fourth, Attorney Salazar's fee might be forfeited as proceeds of illegal activity. If that happened, Mr. McKeighan might find Attorney Salazar's free representation to be ineffective.
In describing these potential conflicts, the court made clear that it was “simply giving ... examples of what could happen.” Id. It was “not admonishing or indicting” Attorney Salazar, id. at 30, and was “not picking sides in all this,” id. at 31. The court stated it was “not passing any judgment” on Attorney Salazar, id. at 43, and that Attorney Salazar had done nothing to give the court “any indication to think ... that he's causing any problems for anybody,” id. When asked whether he understood the points the court was making, Mr. McKeighan nodded his head yes.
The court then told Mr. McKeighan that if Attorney Salazar obtained local counsel and if Mr. McKeighan wanted to continue with Attorney Salazar's representation, the court would
conduct some more formal proceedings to assure ... that you not only have been exposed to all these risks ... [described] today, but that ... if you want Mr. Salazar as your lawyer, waive the ramifications of that, meaning that if you go to trial and get convicted, you cannot come back later and say, [“G]ive me a new trial, Judge. I never should have had Mr. Salazar as my lawyer. [”] ... If you want Mr. Salazar, fine, but you're not going to come back later if you get convicted and say, [“]Mr. Salazar shouldn't have been allowed to represent me because he was actually acting in somebody else's best interests, or wasn't getting paid, [and] therefore, didn't do a good job[.”] ... [I]f you said you wanted to stick with Mr. Salazar, I would be fairly inclined to say, as far as I'm concerned, we can move forward, I can give you the conflict-of-interest-waiver colloquy, and if they indict Mr. Salazar ... we will cross that bridge when we come to it.
Id. at 26–28 (emphases added).
On September 26, 2006, Attorney Salazar moved to withdraw as Mr. McKeighan's counsel. He stated that the “Government believes a conflict of interest may develop since discovering that a third party is paying [Mr. McKeighan's] ... fees” and that he “has not been able to obtain assistance of local counsel as required by local rules” to continue his appearance pro hac vice. ROA, Supp. Vol. 2, at 50. The district court granted the motion on September 28, 2006, and counsel was appointed for Mr. McKeighan.
On February 28, 2007, the grand jury issued a superseding indictment adding a fifth count against Mr. McKeighan and his girlfriend, Ms. Bledsoe. Count Five charged Mr. McKeighan and Ms. Bledsoe with conspiring to commit money laundering in connection with the $25,000 fee paid to Attorney Salazar. The superseding indictment also alleged that the $25,000 fee—then held in the court's registry—was subject to criminal forfeiture pursuant to 18 U.S.C. § 982.
Ms. Bledsoe pled guilty to a reduced felony charge, and the Government dismissed Count Five against her. Mr. McKeighan proceeded to trial.
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