U.S. v. Register

• Decision Date: 29 July 1999
• Docket Number: No. 96-2599,96-2599
• Citation: 182 F.3d 820
• Parties: (11th Cir. 1999) UNITED STATES of America, Plaintiff-Appellee, v. Jubal Charles REGISTER, Ronald Owen Bilbrey, Jr., and Herbert Charles Register, Defendants- Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 820

182 F.3d 820 (11th Cir. 1999)

UNITED STATES of America, Plaintiff-Appellee, v. Jubal Charles REGISTER, Ronald Owen Bilbrey, Jr., and Herbert Charles Register, Defendants-Appellants.

No. 96-2599.

United States Court of Appeals, Eleventh Circuit.

July 29, 1999.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Appeals from the United States District Court for the Middle District of Florida. (No. 93-305-CR-T-17A), Lee P. Gagliardi, Judge.

Before MARCUS, Circuit Judge, and KRAVITCH, Senior Circuit Judge.^*

KRAVITCH, Senior Circuit Judge:

A jury convicted defendants-appellants Herbert Charles Register ("Charles Register"), Jubal Charles Register ("Jubal Register"), and Ronald Owen Bilbrey, Jr. ("Bilbrey") in November 1995 of various federal crimes related to drug trafficking, including one count of conspiring to distribute and to possess for the purpose of distributing methamphetamine in violation of 21 U.S.C. 846 and multiple counts of possession with intent to distribute and distribution of methamphetamine in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2. The jury also convicted Bilbrey and Charles Register of other drug offenses; Charles Register of two counts of being a felon in possession of a firearm in violation of 18 U.S.C. 922(g); and Jubal Register of carrying a firearm in relation to a drug trafficking offense in violation of 18 U.S.C 924(c).¹ Finally, the jury required the defendants to forfeit two businesses and two parcels of real estate pursuant to 21 U.S.C. 853(a). The district court set aside the jury's verdict against Jubal Register for using a firearm in relation to drug trafficking, sentenced all three defendants on their convictions, and entered an order requiring the defendants to forfeit the property in question.

Each defendant appeals several aspects of his trial, conviction, and/or sentence. The defendants present a total of seven issues for our consideration: (1) whether the amount of time that passed between the initial indictment and the trial violated Jubal Register's statutory or constitutional right to a speedy trial; (2) whether the district court violated Charles Register's constitutional right to be represented by counsel of his choice by disqualifying his retained attorney prior to trial; (3) whether the district court erred in refusing to grant Charles Register an adversarial, pre-trial hearing with respect to the government's filing of notices of lis pendens regarding his property, effectively preventing him from using that property to retain a new attorney; (4) whether the district court erred when it retained one juror accused of bias and when it dismissed and replaced another juror for improper conduct; (5) whether sufficient evidence existed to support Jubal Register's convictions;(6) whether the district court erred in enhancing Charles Register's and Jubal Register's sentences for possession of a firearm during the commission of a drug offense; and (7) whether the district court violated the Ex Post Facto clause by applying the most recent version of the Sentencing Guidelines.

With respect to the last three issues, we have examined the record and found those challenges to be without merit; we therefore affirm the district court's decisions on those three points without discussion. We also affirm the district court with respect to the first four issues, for the reasons discussed in Part II of this opinion.

I. Background

A grand jury originally returned an indictment encompassing some of the charges in this case in 1992 ("the initial indictment" or "the 1992 indictment"). As a result, Charles Register and Jubal Register both were arrested. At their arraignment in October 1992, the government brought to the court's attention a possible conflict of interest: Charles Register's attorney previously had represented several potential witnesses and currently was representing Jubal Register on matters related to the charges in the indictment. The court held a Garcia² hearing, explaining to Charles Register how his attorney's other representations could impair his ability to represent Charles Register effectively. Charles Register waived any conflict of interest, electing to proceed with his attorney, and the court accepted this waiver. The court detained Charles Register; Jubal Register initially obtained bond but violated conditions of his bond release in May 1993, which resulted in his detention. Both Charles Register and Jubal Register remained in prison until their trial in November 1995.

In November 1993, a grand jury returned another indictment ("the 1993 indictment") that included additional defendants³ and charges; shortly thereafter, the government dismissed the initial indictment. The 1993 indictment charged, among other things, that the defendants had formed an "enterprise" to provide an organized framework for distributing controlled substances in violation of the federal Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. 1961-1968. It alleged that one manner in which the enterprise operated was that unnamed "attorneys" representing members of the enterprise would learn of the forthcoming execution of search warrants, warn enterprise members of the warrants, and conceal contraband for the members to avoid detection, and would share other information they obtained from their clients with other members of the enterprise. The 1993 indictment also set out the charges on which the jury ultimately convicted the defendants and included forfeiture allegations with respect to personal property, businesses, and real estate parcels. Immediately after the grand jury returned this indictment, the government filed lis pendens notices with respect to three pieces of real estate on which it was seeking forfeiture. Charles Register had an ownership interest in two of these pieces of property.⁴

In January 1994, the government again moved for the district court to disqualify Charles Register's retained attorney because of an actual or potential conflict of interest. This time the government argued that (1) in the past the attorney had represented some of Charles Register's codefendants in state court on substantially related matters; (2) the attorney currently was representing Jubal Register in a related state court matter; and (3) the attorney was a subject, though not a target, of the ongoing grand jury investigation into the criminal activity covered by the indictment, and the government possessed information implicating him in the defendants' alleged criminal conduct. The court ordered a full-scale, adversarial Garcia hearing to resolve the conflict of interest issue.⁵

The court held the second Garcia hearing over three days in December 1994. The government called five witnesses who testified about four possible incidents of misconduct by the attorney. Counsel representing Charles Register's attorney cross-examined the government's witnesses and called two government agents to the stand. At the conclusion of the testimony, the government and the attorney's counsel presented arguments regarding whether the evidence presented at the hearing would be admissible at trial, whether the evidence could be redacted in a way to avoid implicating Charles Register's attorney, and whether the evidence demonstrated an actual or potential conflict of interest such that the court should disqualify the attorney. In January 1995, the district court issued its ruling that an actual conflict of interest existed because the attorney might be more strongly motivated to protect his own interests than those of his client, Charles Register. Although the court did not issue any conclusive findings with respect to the truthfulness of the allegations against the attorney, it found a reasonable possibility that the allegations were true based upon the credible testimony of the government's witnesses. On this basis, it refused to accept Charles Register's waiver of the conflict of interest and disqualified his attorney.

In March 1995, the grand jury handed down its third indictment related to these defendants ("the superseding indictment"), which replaced the 1993 indictment. The superseding indictment was substantially similar to the 1993 indictment except that it eliminated all RICO charges, including all references to any participation by the defendants' unnamed "attorneys" in their criminal activities.

Meanwhile, Charles Register had begun trying to find a new attorney. Although he located an attorney whom he wanted to hire, Richard Hersch, Charles Register's only assets were the two properties with respect to which the government had filed notices of lis pendens in anticipation of requiring their forfeiture. He contended that because the lis pendens notices effectively prevented him from using those assets to retain counsel, the government violated his rights to due process and to be represented by an attorney of his choice by filing the notices without providing him with an adversarial, pre-trial hearing. Hersch entered a limited appearance on behalf of Charles Register on this issue only, demanding a pre-trial hearing with respect to the government's restraint of the property. In the meantime, however, the court found Charles Register to be indigent and appointed an attorney to represent him. Charles Register quickly became unhappy with his appointed attorney and petitioned the court at various times to appoint a new attorney or to allow him to represent himself. A magistrate judge held a hearing to address Charles Register's representation in July 1995. After the magistrate judge determined that it needed to appoint a new attorney, it replaced Charles Register's appointed counsel in August 1995 with attorney Frank Louderback.⁶

The court referred the motion for a hearing on the lis pendens notices to a magistrate judge who began trying to resolve the issue but ultimately determined that he should recuse himself. The second magistrate...