U.S. v. D'Amore

• Decision Date: 12 June 1995
• Docket Number: No. 94-10091,94-10091
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert D'AMORE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1202

56 F.3d 1202

UNITED STATES of America, Plaintiff-Appellee, v. Robert D'AMORE, Defendant-Appellant.

No. 94-10091.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 16, 1995.

Decided June 12, 1995.

John C. Lambrose, Chief Asst. Federal Public Defender, and Janet S. Bessemer, Asst. Federal Public Defender, Las Vegas, NV, for defendant-appellant.

Jamon A. Jarvis, Asst. U.S. Atty., Las Vegas, NV, for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada.

Before: NORRIS, WIGGINS, and FERNANDEZ, Circuit Judges.

WILLIAM A. NORRIS, Circuit Judge:

Robert D'Amore appeals the district court's denial of his request to substitute private counsel of his choosing for his court-appointed lawyer at his probation revocation hearing. We reverse and remand for a new hearing. ¹

I

In September, 1993, the Government filed a Petition on Probation and Supervised Release seeking revocation of the defendant's probation. The petition alleged that D'Amore had violated state law by obtaining money under false pretenses and had failed to follow a counseling program for a gambling addiction. A private attorney, Douglas Crawford, was appointed to represent D'Amore. The Government amended the petition to add further allegations on November 23, 1993. A bench warrant was then issued and D'Amore was detained pending his probation revocation hearing. At the stipulation of the parties, the hearing was then rescheduled for January 14, 1994, but that date was later changed by the court to January 28.

The day before the hearing, January 27, Crawford filed a motion requesting leave to withdraw as counsel to permit D'Amore to substitute retained counsel of his choosing. The court issued no formal ruling on the motion on January 27 and did not continue the revocation hearing in order to permit time to consider the motion. Thus, the motion was still pending on the morning of January 28, when the parties gathered for the scheduled revocation hearing. Before the hearing on the revocation began, the court permitted D'Amore to make a statement. He reminded the court that a motion for substitution of counsel had been made the day before and complained about Crawford's representation. In particular, he was upset that Crawford had not sufficiently explored plea bargaining possibilities, had not spent adequate time preparing for the case, and could not be reached for the last three weeks because he was vacationing in Europe. D'Amore told the court that his family had retained substitute counsel, Carmine Colucci, who had been given the case file, but who had not yet had a chance to prepare with D'Amore for the revocation hearing. He promised to prepare with new counsel expeditiously and further stated that he believed he could reach a plea agreement and avoid the need for a hearing with the help of new counsel.

At this point, the court stated:

You can--you can admit to the violations, and I would have to think you've been advised of that. It isn't--and it happens with regularity. But I'm not going to countenance this kind of delay. This has been pending for a very long time, and I see all kinds of evidence of efforts being made to avoid and delay responsibility. We will go ahead today. I advised Mr. Crawford of that yesterday. I have not heard from any other counsel, as far as I know. And we will proceed.

After the hearing, the district court found that the defendant had violated his probation and sentenced him to five years incarceration.

II

The district court's denial of the motion to substitute counsel is reviewed for abuse of discretion. United States v. Castro, 972 F.2d 1107, 1109 (9th Cir.1992). That discretion must be exercised, however, within the limitations of the Sixth Amendment, which grants criminal defendants a qualified constitutional right to hire counsel of their choice. United States v. Ray, 731 F.2d 1361, 1365 (9th Cir.1984). This right is qualified in that it may be abridged to serve some "compelling purpose." United States v. Lillie, 989 F.2d 1054, 1055-56 (9th Cir.1993). Such a compelling purpose may be found when granting the motion would lead to a delay in the proceedings and the Government's interest in the prompt and efficient administration of justice outweighs the defendant's need for new counsel to adequately defend himself. ² See id.; United States v. Kelm, 827 F.2d 1319, 1322 (9th Cir.1987). Absent such a compelling purpose, however, it is a violation of the Sixth Amendment to deny a motion to substitute counsel and an error that must be reversed, regardless of whether prejudice results. United States v. Washington, 797 F.2d 1461, 1467 (9th Cir.1986); Ray, 731 F.2d at 1365. Thus, "the defendant can't be denied his choice of retained counsel just because the request comes late, or the court thinks current counsel is doing an adequate job." Lillie, 989 F.2d at 1056. Instead, when granting the motion would require a continuance, ³ the court must weigh the defendant's Sixth Amendment interest against any delay or inconvenience caused by the request for substitution, even when the request is made at the last minute. See id.; Kelm, 827 F.2d at 1322.

In reviewing the district court's denial of a late motion to substitute private for appointed counsel, we focus on three considerations:

(1) the adequacy of the district court's inquiry;

(2) the extent of the conflict between the defendant and counsel (3) the timeliness of the motion and extent of any inconvenience or delay that would result from granting the motion.

See Lillie, 989 F.2d at 1056; Castro, 972 F.2d at 1109; United States v. Walker, 915 F.2d 480, 482-83 (9th Cir.1990); Kelm, 827 F.2d at 1322 & n. 2.

A Adequacy of Inquiry

Before the district court can engage in a measured exercise of discretion, it must conduct an inquiry adequate to create a "sufficient basis for reaching an informed decision." United States v. McClendon, 782 F.2d 785, 789 (9th Cir.1986). In this case, the district court's inquiry into the merits of defendant's motion was unsatisfactory.

It appears that the district court had reached a tentative conclusion about the defendant's motion for substitution prior to the January 28 hearing. At that hearing, the judge stated that it would proceed as scheduled and that the court had "advised Mr. Crawford of that yesterday." The only plausible reading of this statement is that the court had at least tentatively made its decision before it held the hearing on the motion. At any rate, the proceedings in court on January 28 were exceedingly abbreviated. None of the attorneys spoke regarding the motion. Crawford made no argument, factual or legal. The court conducted no inquiry of the defendant or his lawyer regarding the conflict between them or the length of the necessary delay. Instead, D'Amore was merely given a chance to speak, after which the court reiterated what it had told Crawford the day before--the case would proceed as scheduled.

The procedure resulted in an inquiry that was clearly inadequate. While "[w]e 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," Walker, 915 F.2d at 483, the procedure used here deprived this court of a record for review and the defendant of an opportunity to obtain a full exploration of his concerns about his appointed counsel's performance. See Torres-Rodriguez, 930 F.2d at 1381.

Moreover, regardless of the district court's views, tentative or otherwise, which developed before the defendant spoke at the January 28 hearing, we find that the inquiry conducted that morning was inadequate. First, the court did not inquire into how long a continuance the defendant's new counsel would need to prepare for the case. ⁴ See Lillie, 989 F.2d at 1056; Torres-Rodriguez, 930 F.2d at 1381. Second, the court did not attempt to gauge how much inconvenience would be caused by a delay in the proceedings. See Torres-Rodriguez, 930 F.2d at 1381. While it was obvious that there would be some inconvenience for the lawyers and witnesses, the court did not attempt to determine how much inconvenience would be caused by a delay. ⁵ Third, the court did not inquire of Crawford or the defendant about the degree to which the animosity and lack of communication between them had prevented adequate preparation for the hearing. See id. Finally, the court did not ask why the motion had not been made earlier or discuss when or whether it had received the defendant's letter asking to replace Crawford. See Kelm, 827 F.2d at 1322 n. 2.

All these inquiries were important to the district court decision that a compelling purpose would be served by denying the defendant his qualified constitutional right to hire counsel of his choice.

B Extent of Conflict with Counsel

Although the district court did not inquire into the extent of the conflict between D'Amore and Crawford, the uncontroverted evidence from Crawford's affidavit and D'Amore's statements to the court reveals a significant conflict and breakdown of communications that substantially interfered with the representation.

In his affidavit in support of the motion to substitute counsel, Crawford testified that D'Amore "will not cooperate with your affiant or any other attorney from your affiant's office in preparation for the forthcoming hearing resulting in your affiant's inability to represent Defendant D'AMORE in this matter." This sworn statement was not controverted by the Government and was well-supported by D'Amore's own statements.

D'Amore told the court that he had spent about half an hour with his attorney preparing for the case, and only five minutes during the two months after the petition had been amended to add several additional counts. Even more upsetting to D'Amore was Crawford's failure to adequately pursue plea bargaining negotiations. He had some money he wanted to offer as...