U.S. v. Diaz-Martinez, DIAZ-MARTINEZ

• Decision Date: 07 November 1995
• Docket Number: P,DIAZ-MARTINE,Nos. 95-1083,DIAZ-MARTINEZ,95-1536,s. 95-1083
• Citation: 71 F.3d 946
• Parties: UNITED STATES of America, Appellee, v. Edwin, a/k/a Alexis El Boxeador, Defendant, Appellant. Edwin, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 946

71 F.3d 946

UNITED STATES of America, Appellee, v. Edwin DIAZ-MARTINEZ, a/k/a Alexis El Boxeador, Defendant, Appellant.

Edwin DIAZ-MARTINEZ, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.

Nos. 95-1083, 95-1536.

United States Court of Appeals, First Circuit.

Heard Nov. 7, 1995.

Decided Dec. 13, 1995.

James Kousouros, Kew Gardens, NY, with whom Debra K. Kousouros, White Plains, NY, were on brief, for appellant.

Edwin O. Vazquez, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, and Jose A. Quiles-Espinosa, Senior Litigation Counsel, were on brief, for the United States.

Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

Following a shootout near the Bayamon Judicial Center in Bayamon, Puerto Rico, defendant Diaz-Martinez was convicted of possessing firearms with obliterated serial numbers. He appeals, saying he was forced to go to trial with defense counsel not of his choosing, that the prosecutor improperly argued at closing, that his sentence was too harsh under the Guidelines, and that the statute under which he was convicted cannot withstand Commerce Clause scrutiny under United States v. Lopez, --- U.S. ----, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). We reject his claims and affirm.

I Factual Background

The sounds of gunfire and a man ¹ lying on the ground with critical gunshot wounds evidenced a gun battle on January 24, 1994 near the Bayamon courthouse and in the parking lot of the Santa Rosa Shopping Center. A law enforcement officer leaving the courthouse heard the shots and ran toward the parking lot. He saw the defendant running through the lot, pistol in one hand and a small object, probably a cellular phone, in the other. The officer saw the defendant fire two rounds and ran after him.

The defendant, who was found squatting behind some bushes, came out with his hands up when he saw the officer approaching and exclaimed that someone was trying to kill him. Other officers who had heard the shots and one of whom had seen the defendant with a gun also arrived at the scene. A search of the area where the defendant was found turned up a cellular phone and two guns. One gun had a bullet jammed inside. Both smelled of gunpowder, from recent firing. Both had their serial numbers obliterated. Twenty-two bullets were found in the shopping center parking lot. Expert analysis later indicated that thirteen had been fired from the two pistols. A car was also discovered in the parking lot, inside which were papers indicating it had been rented to the defendant, plus two nine millimeter bullet casings--the same caliber as the guns. Other nearby cars were marked with bullet holes.

Weapons charges were filed against the defendant under Puerto Rico law. After a finding of probable cause by the local court, those charges were dropped to accommodate the federal prosecution. ² The federal indictment was filed on February 9, 1994, charging two counts of knowing possession of firearms bearing obliterated serial numbers that had been transported in foreign and interstate commerce in violation of 18 U.S.C. Sec. 922(k). After a four-day trial commencing April 26, 1994, Diaz-Martinez was convicted on both counts of the indictment. He was sentenced to serve two concurrent terms of 45 months plus three years supervised release and was ordered on each conviction to pay $3,000 in fines and a special assessment of $50.

While this appeal was pending, the defendant filed a petition in the district court for collateral relief under 28 U.S.C. Sec. 2255, arguing that his trial had been prejudiced by ineffective assistance of counsel. The district court dismissed the petition as premature, inasmuch as his direct appeal was still pending. The defendant appealed that dismissal. We consolidated the defendant's direct appeal from his convictions and sentence with his appeal from the dismissal of the section 2255 petition.

II

A. Sixth Amendment Right to Counsel Claim

Diaz-Martinez claims that the district court, by refusing to grant him extra time to seek out his own counsel and instead forcing him to go to trial with court-appointed counsel, denied him his right under the Sixth Amendment to choose his own attorney. His argument is without merit.

Since before his February 15, 1994 arraignment, the defendant had been represented by attorney Mendez-Lebron. When the district court on March 3, 1994, scheduled the defendant's trial for April 11, 1994, Mendez-Lebron was still his counsel of record. However, on March 29, less than two weeks prior to trial, Mendez-Lebron filed a motion to withdraw. On March 31, 1994, the district court held a hearing on Mendez-Lebron's motion, together with the defendant's motion to obtain new counsel. The defendant told the court that he had already contacted several other attorneys as potential replacements for Mendez-Lebron, and that one of them, attorney Acevedo, was on his way to the courthouse to be interviewed by the defendant.

The district court, after expressing skepticism as to why the defendant had waited so long to ask for new counsel, allowed Mendez-Lebron to withdraw, but warned the defendant that he would not tolerate strategic refusals to accept representation by particular counsel in order to delay the trial. The court adjourned to permit the defendant an opportunity to interview attorney Acevedo, and then reconvened later the same day. The defendant reported that Acevedo was unable to represent him, but that he had other candidates in mind whom he wished to contact. One of those candidates was attorney Jose Gaztambide.

The court, observing that the trial date was rapidly approaching, refused to give the defendant additional time to interview all of his potential choices and instead appointed Jose Gaztambide--one of the attorneys specifically identified by the defendant as someone he planned to contact--as defendant's counsel. As a further accommodation, the court ordered that the defendant, who was at the time under house arrest in Florida, be allowed to travel to Puerto Rico to confer with Gaztambide in preparation for trial, and also advised the defendant that he could, if he so chose, hire another attorney as Gaztambide's co-counsel. The defendant did not object to Gaztambide's appointment. The court also accommodated the defendant and his new counsel by granting, on the defendant's motion, a two-week continuance of trial. The trial started on April 26, 1994, with Gaztambide acting as defendant's counsel. At no time before or during trial did the defendant advise the district court that he was dissatisfied with Gaztambide's representation.

That a criminal defendant has an absolute right to counsel "does not confer an absolute right to a particular counsel." United States v. Poulack, 556 F.2d 83, 86 (1st Cir.), cert. denied, 434 U.S. 986, 98 S.Ct. 613, 54 L.Ed.2d 480 (1977); see also Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988) ("[T]he 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."); Morris v. Slappy, 461 U.S. 1, 13-14, 103 S.Ct. 1610 1617, 75 L.Ed.2d 610 (1983) (Sixth Amendment does not guarantee that an accused have a "meaningful relationship" with trial counsel); United States v. Betancourt-Arretuche, 933 F.2d 89, 93 (1st Cir.), cert. denied, 502 U.S. 959, 112 S.Ct. 421, 116 L.Ed.2d 441 (1991). A district court's decision not to permit substitution of trial counsel is given deference and is reviewed only for abuse of discretion, especially when that decision is based on legitimate trial management concerns. See Poulack, 556 F.2d at 86 ("[T]he right of an accused to choose his own counsel cannot be insisted upon in a manner that will obstruct reasonable and orderly court procedure."); see also United States v. Pierce, 60 F.3d 886, 890-91 (1st Cir.1995), petition for cert. filed (U.S. Oct. 19, 1995) (No. 95-6474).

The appointment of Gaztambide as the defendant's trial counsel did not constitute an abuse of discretion and did not violate the defendant's Sixth Amendment rights. If anything, the defendant was granted more choice than he was due. Cf. United States v. Allen, 789 F.2d 90, 92-93 (1st Cir.) (affirming denial of request for new appointed counsel absent showing of good cause), cert. denied, 479 U.S. 846, 107 S.Ct. 164, 93 L.Ed.2d 103 (1986). The district court gave the defendant the benefit of the doubt in allowing his original attorney to withdraw. ³ When the defendant's first choice to replace that counsel refused the representation, the district court was understandably wary about the prospect of delaying trial in order to permit the defendant to interview his entire slate of alternate candidates. The court's decision simply to appoint one of the counsel specifically identified as a candidate by the defendant himself was surely a permissible means of expediting the process and minimizing delay. Both the public and the defendant have an interest in a prompt trial in criminal cases, and the judge properly acted to protect that interest.

A district judge's decision on a defendant's request to substitute trial counsel is entitled to "extraordinary deference" when granting the request would be at the expense of the court's trial calendar. See Pierce, 60 F.3d at 891; see also Morris, 461 U.S. at 11-12, 103 S.Ct. at 1616. Here, the district court's decision to permit the withdrawal of original counsel and to appoint one of the alternate candidates identified by the defendant himself (instead of waiting for the defendant to interview each candidate and make a decision on his own) reflected a fair balancing between the defendant's interest in choosing his counsel and the court's trial management needs. Cf. Poulack, 556 F.2d at 86. That the...