U.S. v. Hurtado

• Decision Date: 16 February 1995
• Docket Number: No. 147,D,147
• Citation: 47 F.3d 577
• Parties: UNITED STATES of America, Appellee, v. Manuel HURTADO, also known as Jorge Vega, also known as Manolo, Defendant-Appellant. ocket 93-1667.
• Court: U.S. Court of Appeals — Second Circuit

Page 577

47 F.3d 577

UNITED STATES of America, Appellee, v. Manuel HURTADO, also known as Jorge Vega, also known as

Manolo, Defendant-Appellant.

No. 147, Docket 93-1667.

United States Court of Appeals, Second Circuit.

Argued Oct. 14, 1994.

Decided Feb. 16, 1995.

Rose Gill, Asst. U.S. Atty., S.D.N.Y., New York City (Mary Jo White, U.S. Atty., John W. Auchincloss, II, Asst. U.S. Atty., Paul Gardephe, Asst. U.S. Atty., on the brief), for appellee.

Christine E. Yaris, New York City (Thalia M. Bender, on the brief), for defendant-appellant.

Before: OAKES, KEARSE and ALTIMARI, Circuit Judges.

ALTIMARI, Circuit Judge:

Defendant-appellant Manuel Hurtado ("Hurtado") was convicted, following a jury trial in the United States District Court for the Southern District of New York (DiCarlo, J., U.S.Ct. of Int'l Trade, sitting by designation), of a single count of conspiracy to distribute and possess with intent to distribute heroin and cocaine, in violation of 21 U.S.C. Sec. 846.

On appeal, he contends that the district court committed a variety of errors warranting reversal of his conviction. His primary contention is that his constitutional rights were violated when he was compelled to wear prison clothing in court on the first day of trial. He also claims that the district court granted his request to represent himself without adequate inquiry; that he received ineffective assistance of counsel prior to trial; that the district court abused its discretion in declining to grant him extensions of time; that the district court erroneously failed to instruct the jury on entrapment; that the district court misunderstood its authority to depart downwardly; and that these alleged errors in combination deprived him of a fair trial. For the reasons stated below, we affirm the judgment of the district court.

BACKGROUND

On April 20, 1993, Hurtado was charged in a one-count superseding indictment with conspiring to distribute and possess with intent to distribute narcotics, in violation of 21 U.S.C. Sec. 846. The indictment alleged that between November 1989 and July 21, 1992, Hurtado conspired with others to distribute heroin and cocaine. Specifically, the indictment alleged a series of overt acts, including several purchases of narcotics and the negotiation and attempted purchase of several kilograms of heroin and cocaine on July 21, 1992, the date of his arrest.

The trial commenced on May 10, 1993. At trial, the government produced evidence, through tape recordings and oral testimony, that Hurtado was actively involved in distributing narcotics over a substantial period of time. Mohammad Naser, a co-conspirator turned informant, testified that he sold Hurtado a total of approximately five kilograms of narcotics over the course of one and a half years. The government also alleged that on July 21, 1992, Hurtado sought to buy three kilograms of heroin from an undercover Drug Enforcement Administration agent. At that tape-recorded meeting, Hurtado discussed the proposed sale of heroin as well as his previous heroin-related activities. He stated that he had customers waiting to buy the three kilograms, that the price of heroin was fluctuating, that he used to sell roughly ten kilograms of heroin per week, that he had been in the narcotics business for fourteen years, and that he distributed heroin purchased from Naser on a regular basis. Hurtado also discussed the possibility of buying a large amount of cocaine from the undercover agent in the future. Hurtado was arrested immediately after giving the agent $20,000 cash as a down payment for the heroin. A subsequent search of his apartment revealed drug paraphernalia, business records corroborating Naser's testimony, cash, and a gun.

Although Hurtado was originally represented by counsel, the district court granted his request on the first day of trial to defend himself. In his defense, Hurtado stated that he first came into contact with Naser because his friend "Alex" owed Naser money. Hurtado claimed that he agreed to pay Alex's debt to Naser as a favor to Alex's wife. He testified that the $20,000 payment was not for heroin, but was instead the payment of a portion of the debt owed. Hurtado admitted to selling heroin on numerous occasions, but testified that the purpose of those sales was to reduce the amount owed to Naser. He explained the drug records in his residence by saying that Naser had hired him as an accountant to help pay off the debt. Hurtado also suggested that his son's death in a car accident and alleged threats made against his family were related to the debt he had agreed to repay. He admitted to engaging in negotiations for the purchase of heroin with the undercover agent, but stated that his true purpose in attending the meeting was to learn about his son's death.

Hurtado was convicted following a six-day jury trial. With a base offense level of 34 and a Criminal History Category I, Hurtado's applicable sentencing range was 151 to 188 months' imprisonment. He was sentenced to 151 months' incarceration, followed by a five-year term of supervised release. Hurtado now appeals.

DISCUSSION

Hurtado raises the following arguments on appeal: that he was compelled to wear prison clothes at trial; that the district court granted his request to proceed pro se without adequate inquiry; that he received ineffective assistance of counsel prior to trial; that the district court abused its discretion in refusing to grant him several continuances; that the district court erred in failing to instruct the jury on entrapment; that the district court misunderstood its authority to depart downwardly; and that the cumulative effect of these alleged errors was to deprive him of a fair trial. We address these arguments in turn.

1. Appearance in Prison Clothes

Hurtado's principal argument is that he was unconstitutionally compelled to wear his prison clothes during a court appearance. On the first day of trial, which included jury selection, Hurtado arrived in court unexpectedly A defendant "should not be compelled to go to trial in prison or jail clothing because of the possible impairment" of the presumption of innocence guaranteed as part of a defendant's due process right to a fair trial. Estelle v. Williams, 425 U.S. 501, 504, 96 S.Ct. 1691, 1693, 48 L.Ed.2d 126 (1976). Courts should scrutinize instances where defendants wear prison clothes to trial given that "compelling an accused to wear jail clothing furthers no essential state policy." Id. at 505, 96 S.Ct. at 1693-94. Because the "particular evil proscribed" is compulsion, a defendant must properly object to having to wear prison clothes at trial. See id. at 507-10, 96 S.Ct. at 1694-96 (no compulsion where counseled defendant did not object "either before or at any time during the trial").

wearing his prison clothes. Hurtado's family claimed that they had tried several times during the previous week to give him street clothes in prison, but were not permitted to do so. They did not, however, bring clothes with them to court. The issue of Hurtado's attire was not brought to the district court's attention at any time prior to the day of trial. The district court inquired if the policy regarding the delivery of clothes to prisoners had changed, to which the United States marshals responded that inmates were allowed to receive clothes in prison. Defense counsel requested a recess to allow Hurtado's family to buy him clothes that day because of the "indelible impression" his appearance might have on the jury. The government took no position on Hurtado's request. The district court refused the request, noting that the problem could have been taken care of before trial and that there was no reason to delay the proceedings. The district court offered a curative instruction, which Hurtado refused.

The first question is thus whether Hurtado was compelled to wear prison garb on the first day of trial. Hurtado claims that he was compelled because he timely objected and because his family made several efforts prior to trial to deliver his street clothes to prison. The government contends that Hurtado was not compelled because there was no policy at the prison to prevent the delivery of clothes, because Hurtado did not raise the issue with the district court prior to trial, and because no family member brought clothes to court, even though they were allegedly aware of the problem.

We conclude that under the circumstances Hurtado was compelled to wear prison clothes on the first day of trial. Hurtado's counsel objected as soon as he became aware of his client's appearance. See United States v. Harris, 703 F.2d 508, 511 (11th Cir.1983) (objection on first day of trial is timely). As such, it does not appear that Hurtado made a tactical decision to wear prison garb in hopes of eliciting sympathy from the jury. See Williams, 425 U.S. at 508, 96 S.Ct. at 1695. Certainly the problem could have been avoided had Hurtado voiced his objection prior to trial, when his family allegedly encountered difficulty delivering clothes to the prison. See United States v. Martin, 964 F.2d 714, 719 (7th Cir.1992) (defendant should have objected "before any trial proceedings had commenced and not wait[ed] until the middle of the first day of trial after the entire jury selection process and the empaneling of the jury"). Nonetheless, there is no indication that Hurtado's counsel was aware of the problem prior to trial. Although we understand the district court's desire to proceed with the trial, we believe that Hurtado should have been afforded a reasonable opportunity to procure street clothes in light of the potential prejudicial impact of his appearance in prison clothes.

Even where a defendant is compelled to wear prison clothes at trial, however, that constitutional error is subject to harmless error analysis. See Davidson v. Riley, 45 F.3d 625, 631-32 (2d Cir.1995) (noting that harmless error analysis applies in context of defendant...