Panzardi-Alvarez v. U.S.

• Decision Date: 06 February 1989
• Docket Number: No. 88-1406,P,PANZARDI-ALVARE,88-1406
• Citation: 879 F.2d 975
• Parties: Jose E.etitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 975

879 F.2d 975

Jose E. PANZARDI-ALVAREZ, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.

No. 88-1406.

United States Court of Appeals, First Circuit.

Heard Feb. 6, 1989.

Decided July 19, 1989.

Charles G. White for petitioner, appellant.

Juan A. Pedrosa, Asst. U.S. Atty., Crim. Div., Guaynabo, P.R., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief, for the U.S.

Before BREYER and TORRUELLA, Circuit Judges, and CAFFREY, ^* Senior District Judge.

TORRUELLA, Circuit Judge.

Jose Panzardi Alvarez ("Panzardi") appeals the denial of his petition under 28 U.S.C. Sec. 2255 to vacate his conviction, as well as his motion under Fed.R.Crim.P. 35 to reduce sentence. Although this court, as well as the lower courts, has already published several opinions in this and other related cases, we will nevertheless fully recite the relevant facts, as an understanding of the procedural history of this case is essential to a determination of the issues now before us.

I. Background

This case began when Panzardi, along with five others, was indicted in connection with the brutal murder of a government informant, who was to be a witness against Panzardi in two drug-related cases that were pending. He was charged with: 1) deprivation of the informant's civil rights, which resulted in the informant's death, in violation of 18 U.S.C. Sec. 241 ("Count I"); 2) aiding and abetting with intent to retaliate, in violation of 18 U.S.C. Secs. 1513 and 2 ("Count II"); and 3) aiding and abetting the unlawful use of firearms, in violation of 18 U.S.C. Sec. 924(c) ("Count III").

Panzardi desired to be represented in this case by Charles G. White ("White"), an attorney admitted to practice in Florida and who is not a member of the Federal Bar for the District of Puerto Rico. White was already representing Panzardi pro hac vice in one of the two pending drug cases. White's motion to be admitted pro hac vice to represent Panzardi in the murder case was denied for two independent reasons: White did not obtain local counsel in violation of Local Rule 204.2 and also because one section of the rule, at that time, limited appearances to one case per year. ¹ See United States v. Panzardi-Alvarez, 623 F.Supp. 108 (D.P.R.1985) (analyzing the constitutionality of the one case per year rule before this court's decision in United States v. Panzardi-Alvarez, 816 F.2d 813 (1st Cir.1987) (holding the one case per year rule to be unconstitutional)).

After refusing to work with a court appointed attorney, Panzardi retained Peter John Porrata ("Porrata"), an attorney in Puerto Rico, to represent him. Nevertheless, White again moved, on January 21, 1986 for admission pro hac vice. He had properly designated local counsel and felt that Local Rule 204.2 was not violated because a new calendar year had begun. The district court denied the application because it interpreted the rule to limit appearances to one case during each twelve month period, rather than calendar year. United States v. Panzardi-Alvarez, 628 F.Supp. 667 (D.P.R.1986). The court also implied that other considerations concerning the ethics of White's behavior before the court would prevent the judge, in his discretion, from allowing White's requested admission. Id. at 668.

Porrata continued as Panzardi's counsel, through the time when Panzardi changed his plea and pleaded guilty after a thorough Rule 11 hearing. Panzardi pleaded guilty to Count I and agreed to cooperate fully with the authorities about other on-going investigations. In exchange for his change of plea, the government agreed to drop the other two counts, to recommend that Panzardi's sentence on Count I run concurrently with any sentences that he received in other cases, and to inform the court of the extent of Panzardi's cooperation. Panzardi's agreement included a clause stating that the terms of the agreement were not binding upon the sentencing judge and that the government would make no sentencing recommendation. Panzardi was sentenced to be incarcerated for 99 years.

After sentencing, Panzardi continued cooperating with government investigations and prosecutions. Approximately three months after sentencing, Panzardi filed a motion to reduce sentence, pursuant to Federal Rule of Criminal Procedure 35(b), which was denied. He then moved pro se for reconsideration of the denial of this motion. Before a hearing on this motion, Panzardi moved again for White's pro hac vice admission, relying on the then recent opinion by this court holding that the one case per year rule was invalid. See United States v. Panzardi-Alvarez, 816 F.2d 813 (1st Cir.1987) (holding that denying defendant's request to be represented by outside counsel because of one case per year rule violated defendant's Sixth Amendment right to counsel of one's choice). Nevertheless, the district court, in its discretion, again denied the motion, finding that White had committed a number of ethical violations that should prevent him from appearing before the court.

The court focused primarily on two incidents. First, before Panzardi had changed his plea, another attorney from Florida, Paul McKenna, had filed a motion to appear pro hac vice in order to represent Gloria Nieves-Baez, one of Panzardi's co-defendants, as well as his girlfriend of many years. McKenna had offices in the same building as White, although the two attorneys did not formally share a practice. When McKenna's motion was denied because he had not designated local counsel, McKenna, with the cooperation and support of White, filed a petition with the court under 18 U.S.C. Secs. 2241 and 2255. The two attorneys apparently waited for a ruling outside of the judge's courtroom. Although the details of their actions outside of the judge's chambers are not completely clear from the record, their conduct was considered harassing by the judge, who felt forced to call a United States Marshal to remove them from the premises.

White eventually helped Panzardi procure representation for Nieves-Baez by John F. O'Donnell ("O'Donnell"), another Florida attorney, recommended to White by McKenna and who would be working with the assistance of local counsel. Panzardi paid for the services of these attorneys and on occasion, White would collect payments from Panzardi and deliver them to O'Donnell. The district court was not informed by the parties or their counsel as to this arrangement. Rather, this information was made known only when Nieves-Baez approached the judge below, stating that she wanted to cooperate with the government but was afraid to speak freely with her attorney because of his ties to Panzardi. The court below held a conflict of interest hearing but, due to the prior violent killing of a government witness in this case and thus the possible danger to the safety of Nieves-Baez, initially ordered the record of this hearing to be sealed. Because of the evidence presented at this hearing of an apparent "joint representation scheme," United States v. Panzardi-Alvarez, 678 F.Supp. 353 at 358 (D.P.R.1988), as well as the scene that had occurred outside of the judge's courtroom the judge below denied White's application for admission.

White's last application for pro hac vice admission was filed in order to enable White to represent Panzardi in his Sec. 2255 motion. This motion was denied, although White apparently prepared all of Panzardi's Sec. 2255 filings nevertheless.

Panzardi's Sec. 2255 motion to vacate his conviction was based primarily on three claims: 1) ineffective assistance of counsel because he had been refused the counsel of his choice; 2) ineffective assistance of counsel because of Porrata's decision to allow Panzardi to remain incarcerated in New York until shortly before his trial and also because of the alleged inadequate representation provided by Porrata; and 3) the violation of his plea agreement because the sentencing judge allegedly had not considered the full extent of Panzardi's cooperation with the authorities before making the final sentencing decision. Along with these matters, Panzardi moved for the judge below to recuse himself, claiming that the judge's repeated refusals of White's pro hac vice applications, as well as the judge's characterization of White's behavior as unprofessional, evidenced a lack of impartiality. These motions were denied, without a hearing, as was Panzardi's motion to reconsider the denial of the motion to reduce sentence. It is from these denials that Panzardi now appeals.

II. Denial of Panzardi's Counsel of Choice

Panzardi argues that his sixth amendment rights were violated when he was denied his right to be represented by White, his counsel of choice. He claims that the lower court's denials of White's applications for pro hac vice admission were erroneous, with no legitimate grounds upon which to base the decisions. First, although White had not designated local counsel, Panzardi argues that this action was justified because his local counsel was disqualified at the last moment and there remained too little time for White to find substitute counsel. White had not found a replacement at the time that he filed his motion, but he had indicated that he would find suitable local counsel by the time he made his first appearance. Nevertheless, the record is clear that White failed to designate local counsel as is required by Rule 204.2. Although a very technical adherence to the rule, the district judge was clearly justified in requiring compliance. White needed just to obtain local counsel and then was able to refile.

Second, Panzardi argues that the district judge erred in relying upon the one case per year rule, which was later declared unconstitutional. Because courts of appeals will not entertain interlocutory appeals on issues of this sort, see Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984) (holding that violations of a criminal defendant's right to couns...