U.S. v. Lott, 04-6268.

• Decision Date: 05 January 2006
• Docket Number: No. 04-6268.,04-6268.
• Citation: 433 F.3d 718
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Johnny Marton LOTT, also known as Johnny Martin Lott, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

433 F.3d 718

UNITED STATES of America, Plaintiff-Appellee, v. Johnny Marton LOTT, also known as Johnny Martin Lott, Defendant-Appellant.

No. 04-6268.

United States Court of Appeals, Tenth Circuit.

January 5, 2006.

COPYRIGHT MATERIAL OMITTED

Johnny Marton Lott, filed a brief pro se.

Howard A. Pincus, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with him on the briefs), Denver, CO, for Plaintiff-Appellee.

Mark A. Yancey, Assistant United States Attorney (Robert G. McCampbell, United States Attorney, Frank Michael Ringer, Assistant United States Attorney, with him on the brief), Oklahoma City, OK, for Plaintiff-Appellee.

Before LUCERO, ANDERSON, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. Introduction

Defendant-Appellant Johnny Lott was convicted in the United States District Court for the Western District of Oklahoma of offenses involving the manufacture and distribution of methamphetamine and sentenced to thirty years' imprisonment. Lott filed several motions to substitute counsel during the sentencing phase of his trial; the district court denied each such motion. On appeal, this court remanded so the district court could conduct an evidentiary hearing on Lott's allegations of a complete breakdown in communication. The district court held a hearing and again denied Lott's motion. Lott appealed. This court has jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). Because any constitutional error in denying Lott counsel for the evidentiary hearing was harmless beyond a reasonable doubt, and the district court did not abuse its discretion in concluding there was not a complete breakdown in communication, we affirm.

II. Background

Lott was convicted by a jury of various offenses in connection with a conspiracy to manufacture and distribute methamphetamine. After his conviction but prior to sentencing, Lott filed five pro se motions with the district court claiming he was dissatisfied with his trial counsel, Jack Pointer. The district court denied each of these motions. Lott was sentenced to thirty years' imprisonment on June 9, 2000. Lott appealed, inter alia, the district court's denial of his motions to substitute counsel. On appeal, this court concluded the district court's denial, without a hearing, of Lott's motions to substitute counsel was an abuse of discretion. United States v. Lott, 310 F.3d 1231, 1250 (10th Cir.2002) [hereinafter Lott I]. The case was remanded so the district court could conduct an evidentiary hearing on Lott's allegations of a complete breakdown in communication between him and Pointer. Id. This court limited the scope of the hearing to the sentencing stage and directed the district court to be guided by Romero v. Furlong, 215 F.3d 1107 (10th Cir.2000). Lott I, 310 F.3d at 1250 & n. 16.

On remand, the district court held an evidentiary hearing. Lott moved for the appointment of counsel to assist him at the hearing. The district court denied the motion. At the hearing, Lott testified regarding his complaints about Pointer's representation. Lott stated that Pointer did not provide him with any discovery and never visited him in jail. In response to questions by the government, however, Lott admitted he had met with Pointer and his probation officer to prepare the Presentence Investigation Report ("PSR"). In addition, Lott and Pointer corresponded through letters and talked on the telephone. The government called Pointer to testify at the hearing. Pointer testified to two personal meetings with Lott and several letters and telephone calls following his conviction. Pointer also stated that Lott refused to assist him with his defense and instead claimed he had been set up and the witnesses were all lying. After the hearing, the district court determined Lott had failed to show "good cause" in support of his request for substitution of counsel.

III. Discussion

A. Right to Counsel

Lott first argues he was entitled under the Sixth Amendment to have counsel represent him at the evidentiary hearing. Lott concedes that, typically, a district court conducting an evidentiary hearing on a motion to substitute counsel will not have to appoint new counsel to represent the defendant during the hearing. Lott argues, however, that because the hearing in this case was conducted in an adversarial manner, instead of an inquisitorial one, he is entitled to counsel. In determining if a defendant has a Sixth Amendment right to counsel, we review any underlying factual determinations for clear error and the legal questions de novo. United States v. Washington, 11 F.3d 1510, 1517 (10th Cir.1993).

When a defendant files a motion for new counsel, "the district court should make formal inquiry into the defendant's reasons for dissatisfaction with present counsel." United States v. Padilla, 819 F.2d 952, 956 n. 1 (10th Cir.1987). This inquiry usually takes an inquisitorial form, with the judge questioning both defendant and counsel. See, e.g., United States v. Doe, 272 F.3d 116, 123-24 (2d Cir.2001). The hearing in this case, however, did not proceed merely as a colloquy between the court, Lott, and Pointer. Although the district court questioned both Lott and Pointer, it also permitted the government to cross-examine Lott, question Pointer, and present documentary evidence. Moreover, because Lott had already been sentenced, his motion for substitute counsel effectively sought a new sentencing hearing, and the government had an interest in advocating for the denial of Lott's motion. Thus, the hearing was adversarial. We need not decide, however, whether the unique posture of this case and the adversarial nature of the evidentiary hearing transformed it into a "`critical' stage[ ] of the proceeding" such that the Sixth Amendment right to counsel is implicated. United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Rather, any constitutional error was harmless beyond a reasonable doubt because the presence of counsel for Lott at the evidentiary hearing would not have affected the district court's decision. See Milton v. Wainwright, 407 U.S. 371, 372, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972) (concluding that any error in admitting confession was harmless without reaching merits of constitutional claim).

The Supreme Court recognized in Chapman v. California that there are "some constitutional errors which in the setting of a particular case ... may ... be deemed harmless." 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).¹ Since Chapman, the Court has "applied harmless-error analysis to a wide range of errors and has recognized that most constitutional errors can be harmless." Arizona v. Fulminante, 499 U.S. 279, 306, 307, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (listing constitutional violations analyzed for harmless error). Some constitutional violations, however, are not subject to harmless error review, and instead, require automatic reversal. These violations, termed "structural errors," involve defects in the "trial mechanism" and affect "the framework within which the trial proceeds" "from beginning to end." Id. at 309-10, 111 S.Ct. 1246. Only a limited class of constitutional violations have been held to constitute structural error. See Sullivan v. Louisiana, 508 U.S. 275, 280-82, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (jury instruction that contained "a misdirection on the burden of proof"); Fulminante, 499 U.S. at 306-07, 111 S.Ct. 1246 (collecting cases); Penson v. Ohio, 488 U.S. 75, 88-89, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) (complete denial of counsel on appeal).

Some Sixth Amendment right to counsel violations are amenable to harmless error analysis, while others are not. In Satterwhite v. Texas, the Supreme Court explained that Sixth Amendment structural error exists when "the deprivation of the right to counsel affect[s]—and contaminate[s]—the entire criminal proceeding." 486 U.S. 249, 257, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988); see also Penson, 488 U.S. at 88-89, 109 S.Ct. 346 (complete denial of counsel on appeal); Holloway v. Arkansas, 435 U.S. 475, 490-91, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978) (conflict of interest in representation throughout entire proceeding); White v. Maryland, 373 U.S. 59, 60, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963) (absence of counsel from preliminary hearing where guilty plea was later admitted at trial); Gideon v. Wainwright, 372 U.S. 335, 345, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (total deprivation of counsel throughout entire proceeding); Hamilton v. Alabama, 368 U.S. 52, 55, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961) (absence of counsel from arraignment where defenses not asserted were irretrievably lost). Sixth Amendment violations that do not pervade the entire proceeding, on the other hand, are subject to harmless error review. See Coleman v. Alabama, 399 U.S. 1, 9-10, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) (absence of counsel at preliminary hearing but prosecution prohibited from using anything that occurred at the hearing at trial); Satterwhite, 486 U.S. at 258, 108 S.Ct. 1792 (admission of psychiatric testimony at capital sentencing obtained in violation of Sixth Amendment); Moore v. Illinois, 434 U.S. 220, 232, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977) (admission of pretrial, corporeal identification made without counsel present); Milton, 407 U.S. at 377-78, 92 S.Ct. 2174 (admission of confession obtained without counsel).

In Coleman, for example, the Court held a preliminary hearing in Alabama state court is a "critical stage" for Sixth Amendment purposes, entitling the defendant to representation by counsel. 399 U.S. at 9-10, 90 S.Ct. 1999 (1999). The Court nevertheless concluded that the denial of counsel at a preliminary hearing was subject to harmless error review. Id. at 10-11. Coleman is consistent with the Court's precedent regarding the application of harmless error analysis because the right to counsel in Coleman was only denied for the preliminary hearing, not the entire...