U.S. v. Walker
| Decision Date | 25 September 1990 |
| Docket Number | No. 89-30113,89-30113 |
| Citation | 915 F.2d 480 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Larry WALKER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Walter Share, Seattle, Wash., for defendant-appellant.
Richard A. Jones, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Washington.
Before FARRIS, PREGERSON and BOOCHEVER, Circuit Judges.
Larry Walker appeals his conviction on charges of conspiracy to distribute lysergic acid diethylamide (LSD) and aiding and abetting the distribution of over ten grams of a mixture containing LSD. Walker challenges the jury instructions and the district court's refusal to appoint substitute counsel for him. We find that Walker was improperly denied substitute counsel and therefore reverse and remand for a new trial.
Roger Wilcox was the subject of a Drug Enforcement Agency (DEA) investigation into sales of LSD in the summer of 1987. As part of this investigation, a confidential DEA informant arranged to purchase quantities of LSD from Wilcox. DEA agents taped telephone conversations between Wilcox and his source for the drug, whom Wilcox later identified as Walker. The informant and an undercover agent also received telephone calls from a man in connection with the drug sales, whose voice Wilcox also identified as Walker's.
During the course of their surveillance of Wilcox, the agents observed him pick up quantities of LSD at Walker's residence. They also followed Wilcox and a man identified as Walker when they drove to Seattle-Tacoma International Airport in Walker's car. At the airport, the agents observed the man arrange to wire money, which the agents believed was being sent to a major source in California as part of the drug transaction negotiated with the informant.
Following two separate sales of LSD to the informant, Wilcox was arrested and agreed to plead guilty to lesser charges in exchange for his cooperation and testimony against Walker. Walker was arrested and charged with one count of conspiracy to distribute LSD in violation of 21 U.S.C. Sec. 846 (1988), and two counts of distribution and aiding and abetting the distribution of over ten grams of a mixture containing LSD in violation of id. Sec. 841(a)(1) & (b)(1)(A) and 18 U.S.C. Sec. 2 (1988).
Walker was represented by a public defender. In a letter dated January 13, 1989, one week before Walker's trial was scheduled to begin, Walker wrote to the district On Friday, January 20, the day trial was to begin, Walker told the court that he had sent a letter requesting new counsel and moved to have different counsel appointed to represent him. After eliciting from Walker that he was not challenging his present attorney's legal competence, the court denied his motion. His attorney then stated that she and Walker were experiencing irreconcilable differences that were preventing her from representing Walker, and moved to withdraw. The court found that she was competent and denied the motion.
judge and requested that another attorney be appointed to represent him. He listed several witnesses he believed were crucial to his defense and explained that he had told his present attorney about these witnesses, but she had failed to contact them. He believed that she was doing "as little as possible and only [was] planning on putting on the pretext of a defense, instead of a proper and real one based on facts that are available and creditable witnesses that are available."
The following Monday, January 23, the district judge stated that he had read Walker's letter for the first time after court had adjourned on Friday. The court reiterated its denial of Walker's motion for substitute counsel, but acknowledged that Walker had a right to call witnesses in his defense. The court noted, however, that Walker's request posed procedural difficulties regarding who would question the witnesses Walker wanted to call and when that questioning would take place. Without resolving these difficulties, the court had the letter filed and proceeded with trial.
The next day, the prosecution rested its case. The defense, per Walker's attorney, rested immediately thereafter, without any further reference to the witnesses Walker sought to call and without calling any witnesses for the defense. The jury convicted Walker on the conspiracy count and on one of the two counts of distribution and aiding and abetting the distribution of more than ten grams of LSD mixture. He was sentenced to the statutory minimum of ten years on each count to be served concurrently, five years of supervised release, and a fine of $5,000.
We review the district court's refusal to substitute counsel for abuse of discretion. United States v. Rogers, 769 F.2d 1418, 1423 (9th Cir.1985). We consider three factors "when reviewing the denial of a motion to substitute counsel: (1) timeliness of the motion; (2) adequacy of the court's inquiry into the defendant's complaint; and (3) whether the conflict between the defendant and his attorney was so great that it resulted in a total lack of communication preventing an adequate defense." Id.
The district court did not address Walker's request for new counsel until the day trial was to begin. "It is within the trial judge's discretion to deny a motion to substitute made during or on the eve of trial if the substitution would require a continuance." United States v. McClendon, 782 F.2d 785, 789 (9th Cir.1986) (citing United States v. Williams, 594 F.2d 1258, 1260-61 (9th Cir.1979)). Here, however, Walker requested new counsel in a letter dated one week before trial began. The court did not read this letter until after its initial ruling on Walker's motion, apparently because the letter was addressed to the district judge personally, rather than to the court. Thus, although the motion was not formally made until the morning of the first day of trial, Walker attempted to make his motion before trial began.
Moreover, the district court did not discuss the lack of timeliness or any potential delay posed by Walker's motion, nor did it indicate that timeliness was a consideration underlying its denial of the motion. Rather, the court denied the motion after concluding that Walker's present counsel was competent. The government raised the issue of timeliness when the court discussed Walker's letter the following Monday, but the government stated that it did not object to a continuance so that Walker could contact
the witnesses and arrange to have them testify. Again, however, the court did not indicate that timing or delay affected its decision to deny the motion. The questionable timeliness of Walker's motion did not underlie the district court's exercise of its discretion to deny the motion, and thus we do not find it dispositive of this issue.
Under the second factor, we must assess the adequacy of the district court's inquiry into the reasons Walker requested substitute counsel. The court's inquiry consisted of the following exchange:
Thank you, Your Honor.
We recognize that the nature of our review requires that we accord the district court sufficient latitude to conduct the proper inquiry under the circumstances of each case. See, e.g., McClendon, 782 F.2d at 789 (). Here, however, the district court made virtually no attempt to discover the causes underlying Walker's dissatisfaction with his attorney.
Moreover, the focus of the court's limited inquiry was on the competence of Walker's counsel. Our previous decisions demonstrate that the proper focus of such an inquiry is on the nature and extent of the conflict between defendant and counsel, not on whether counsel is legally competent. See, e.g., id. (assessing the adequacy of the district judge's "inquiry into the substance of McClendon's alleged conflict with counsel"). While the district court may have believed that the legal competence of Walker's attorney was the basis of his complaint and tailored its inquiry accordingly, such a belief only would demonstrate the inadequacy of the court's inquiry into the true cause of Walker's dissatisfaction. We find, therefore, that the district court's inquiry into Walker's complaint was inadequate.
The third factor we must consider in reviewing the district court's denial of Walker's motion is whether the conflict between Walker and his counsel was so great that it resulted in a total lack of communication preventing an adequate defense. After the district court concluded its inquiry with Walker, his appointed counsel engaged in the following exchange with the court:
[Counsel]: Your Honor, if I may just add, Mr. Walker, I...
To continue reading
Request your trial
-
State v. Ferguson, 68131
...Ferguson structures her argument on this framework, citing Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir.1991), and U.S. v. Walker, 915 F.2d 480, 482-83 (9th Cir.1990), for Ferguson contends that her relation with trial counsel had deteriorated to the point where he could not give effecti......
-
People v. Abilez
...was effectively denied his right to counsel. These facts distinguish defendant's cited legal authority. For example, in U.S. v. Walker (9th Cir.1990) 915 F.2d 480,2 "the district court made virtually no attempt to discover the causes underlying [the defendant's] dissatisfaction with his att......
-
Plumlee v. Del Papa
...this matter"), overruled on other grounds, United States v. Garrett, 179 F.3d 1143, 1145 (9th Cir.1999) (en banc); United States v. Walker, 915 F.2d 480, 483-84 (9th Cir.1990) (finding irreconcilable conflict where counsel told the court: "I do believe that there is, given his refusal to co......
-
Plumlee v. Sue Del Papa
...this matter"), overruled on other grounds, United States v. Garrett, 179 F.3d 1143, 1145 (9th Cir.1999) (en banc); United States v. Walker, 915 F.2d 480, 483-84 (9th Cir.1990) (finding irreconcilable conflict where counsel told the court: "I do believe that there is, given his refusal to co......