U.S. v. Attar

• Decision Date: 27 October 1994
• Docket Number: Nos. 93-5724,93-5725,s. 93-5724
• Citation: 38 F.3d 727
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Amir James ATTAR, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. PERFECT VIEW, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 727

38 F.3d 727

UNITED STATES of America, Plaintiff-Appellee, v. Amir James ATTAR, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. PERFECT VIEW, INC., Defendant-Appellant.

Nos. 93-5724, 93-5725.

United States Court of Appeals, Fourth Circuit.

Argued March 10, 1994.

Decided Oct. 27, 1994.

ARGUED: Thomas Kieran Maher, Chapel Hill, NC, for appellants. Robert Daniel Potter, Jr., Asst. U.S. Atty., Raleigh, NC, for appellee. ON BRIEF: J. Douglas McCullough, U.S. Atty., Raleigh, NC, for appellee.

Before HAMILTON, Circuit Judge, and PHILLIPS and CHAPMAN, Senior Circuit Judges.

Affirmed by published opinion. Senior Judge PHILLIPS wrote the opinion, in which Judge HAMILTON and Senior Judge CHAPMAN joined.

OPINION

PHILLIPS, Senior Circuit Judge:

Amir Attar and Perfect View, Inc. (PVI) appeal the sentences imposed upon them following their entry of guilty pleas to charges of mail fraud. The appeal raises difficult issues concerning the scope of a waiver of appeal rights in a plea agreement and the extent of a district court's obligation to grant a continuance after granting defense counsel's motion to withdraw. Finding that the claims at issue here are not within the scope of the appeal-waiver provision, but that defendants' Sixth Amendment rights were not violated, we affirm the sentences imposed.

I.

Attar is a chemical engineer who was the president and majority owner of PVI, a research-and-development company which held various research contracts with the United States Government between 1987 and 1991. In 1991, Attar and PVI were indicted in the Eastern District of North Carolina on multiple counts of defrauding the federal government in connection with those research contracts, including 22 counts of mail fraud, 23 counts of submitting false claims to the United States, and 150 counts of making false statements to the United States. Attar retained two attorneys, Cheshire and Gusler, to represent him and PVI in connection with these charges.

At their arraignment, Attar and PVI entered pleas of not guilty, PVI through Attar as its corporate representative. The following day, as the jury was about to be selected, Attar and PVI changed their pleas to guilty, pursuant to a plea agreement which their attorneys had negotiated with the government. The plea agreement provided that Attar and PVI would plead guilty to two counts of mail fraud, pay $120,000 in restitution, and forfeit certain property, in exchange for the government's agreement to dismiss the remaining 194 counts against them, to make no recommendation as to their sentence, and to stipulate that its loss was limited to $120,000. The plea agreement also contained a waiver-of-appeal-rights provision, in which Attar and PVI agreed to:

waive knowingly and expressly all rights, conferred by 18 USC Sec. 3742, to appeal whatever sentence is imposed, including any issues that relate to the establishment of the Guideline range, reserving only the right to appeal from an upward departure from the Guideline range that is established at sentencing, and further to waive all rights to contest the conviction or sentence in any post-conviction proceeding, including one pursuant to 28 USC Sec. 2255, excepting the ... right to appeal based upon grounds of ineffective assistance of counsel and prosecutorial misconduct not known to the Defendants at the time of the[ir] ... guilty plea.

JA 44.

Pursuant to Rule 11 of the Federal Rules of Criminal Procedure, before accepting the guilty pleas, the district court engaged in a lengthy colloquy with Attar, as representative of both himself and the corporate defendant. At the conclusion of that Rule 11 exchange, the district court found that the pleas were being freely and voluntarily entered and that they were supported by an independent basis in fact. It therefore accepted the pleas, adjudged the defendants guilty, and set their sentencing for about four months later.

About two and a half weeks before the scheduled sentencing hearing, the Probation Office issued its preliminary draft of the presentence report for Attar. Defense counsel moved to continue the sentencing, claiming that they needed more time to prepare their objections to the presentence report. The district court granted the motion, which was not opposed by the government, and rescheduled the sentencing for a date approximately two months after the issuance of the preliminary draft of the presentence report. A week before this rescheduled sentencing hearing, the Probation Office issued the final presentence report, which increased Attar's guideline range by 13 months over that recommended in the initial draft.

Two days later, and only five days before the scheduled sentencing hearing, Cheshire and Gusler filed a motion to withdraw as defense counsel, together with a motion to continue sentencing a second time. (JA 78) The motion stated that Cheshire and Gusler had had "numerous and significant disagreements [with Attar] over the conduct of the case" since the entry of the guilty pleas five months earlier; that this disagreement concerned materials that Cheshire and Gusler wanted to file in response to the presentence report, but that the attorney-client privilege prevented them from explaining it further; and that their disagreement was now so "substantial and irreconcilable" that they believed their continued representation of the defendants would violate applicable ethical rules and deprive the defendants of their Sixth Amendment right to effective assistance of counsel. The motion also stated that Attar had informed Cheshire and Gusler that day that the defendants wanted to withdraw their guilty pleas, that they wished to retain other counsel to help them do so because they had "lost faith in" Cheshire and Gusler, and that they needed additional time to find substitute counsel. The motion asked the district court to continue sentencing long enough to permit the defendants to retain other counsel and to pursue their motion to withdraw their guilty pleas. The district court denied both the motion to withdraw and the accompanying motion for a continuance, without a hearing, and ordered the defendants to appear for sentencing as scheduled.

At the outset of the sentencing hearing, defense counsel renewed their motion to withdraw from the case, and the district court asked Attar whether he wanted them to continue to represent him. Attar responded that he was not guilty, that he had pled guilty only to protect members of his family, and that he wanted some time to retain new counsel to assist him in presenting a motion to withdraw his plea. (JA 86-87) The district court told Attar that it would not permit him to withdraw his plea, explaining that:

You have pled guilty; we had an extensive Rule 11 colloquy and you elected to plead guilty; you have done so; the plea has been tendered and accepted by the Court. You are here for sentencing; the matter has been continued quite some time, and the Government is prepared to go forward with their burden. I am not going to allow you to withdraw your plea. You are going to be sentenced today.

JA 87. The court told Attar that he needed to choose between going forward with current counsel and going forward representing himself, either completely pro se or with current counsel as standby counsel. (JA 87) Attar did not give a direct response, saying only that he "was not really prepared right now to present argument as to why I've done what I've done and why I feel that justice is not done ... by this plea or by this sentence." (JA 88) The district court repeated that it was not going to allow Attar to withdraw his plea, because it "was intelligently made and that is behind us," and asked him once again to decide whether to go forward with current counsel or representing himself, with or without current counsel as standby counsel. (JA 88) At this point, Attar asked to confer with Cheshire, which the court allowed him to do. Cheshire then addressed the court and attempted to explain the general nature of the conflict that he and Gusler believed had developed between them and the defendants. He stated that while he and Gusler were preparing a memorandum outlining their objections to the presentence report, Attar had informed them that the positions they were taking in that memorandum "were incorrect because he was not guilty," that he wanted to file a motion for a new trial because he was not guilty, and that he wanted to remove them as counsel for various reasons, which Cheshire said he could not explain "for fear of prejudicing somebody." (JA 89) After hearing Cheshire's remarks, and without any further discussion with Attar--e.g., a warning of the perils of proceeding pro se, or questioning designed to make sure that Attar did in fact desire to proceed pro se, rather than with current counsel, if he could not have a continuance to obtain substitute counsel--the district court stated tersely that the two attorneys "are allowed to withdraw as regular counsel" but ordered them to serve as standby counsel at sentencing. (JA 90) The court then proceeded directly to the sentencing hearing.

At the outset of that hearing, the district court permitted Cheshire and Gusler to file, under seal, the sentencing memorandum which they had prepared for Attar prior to their withdrawal. This caused some confusion, because Cheshire had just told the court that Attar did not agree with the positions taken in that memorandum. In an effort to clarify Attar's position, the court asked him whether he was objecting to everything in the presentence report. Attar's confusing reply seemed to indicate that he objected to the factual basis of the presentence report, but that he wanted to withdraw all objections to the presentence report which Cheshire and Gusler had previously made on his behalf that were inconsistent with his current position that he was not guilty, and that he was "ready to be sentenced." (JA 91) ...