U.S. v. Richardson, 89-1013

• Decision Date: 09 June 1989
• Docket Number: No. 89-1013,89-1013
• Citation: 894 F.2d 492
• Parties: UNITED STATES of America, Appellee, v. Wesner RICHARDSON, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 492

894 F.2d 492

UNITED STATES of America, Appellee, v. Wesner RICHARDSON, Defendant, Appellant.

No. 89-1013.

United States Court of Appeals First Circuit.

Heard June 9, 1989.

Decided Jan. 30, 1990.

Lydia Lizarribar-Masini, Old San Juan, P.R., for appellant.

Warren Vazquez, Asst. U.S. Atty., Crim. Div., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief, for the U.S.

Before CAMPBELL, Chief Judge, TORRUELLA, Circuit Judge, and CAFFREY, ^* Senior District Judge.

CAFFREY, Senior District Judge.

The defendant Wesner Richardson appeals his conviction on July 20, 1988 following a jury trial in the United States District Court of Puerto Rico. ¹ The jury found Richardson guilty of charges involving possession, importation, and carrying on board an aircraft approximately 3.1 kilograms of cocaine in violation of 21 U.S.C. Secs. 841(a)(1), 952(a), and 955. On appeal, Richardson claims that he was denied his right to select counsel of his choice before trial in violation of the sixth amendment. Specifically, Richardson argues that the district court erred in denying his request to substitute a privately-paid lawyer for his court-appointed lawyer on the morning of his trial. After a careful review of the record in this case, we find Richardson's arguments unpersuasive, and, accordingly, we affirm.

I.

On May 13, 1988, Richardson arrived at Luis Munoz Marin International Airport in San Juan, Puerto Rico. Richardson was traveling from Haiti to Puerto Rico on board Air France flight No. 363. Richardson attempted to pass through customs inspection with a large cardboard box containing three carved wooden statues. Customs officials screened the statues with X-rays which revealed an object inside each statue about the size and shape of a loaf of bread. Customs officials then drilled holes in the statues and extracted a white powdery substance from the inside of the statues. The substance field tested positive as cocaine. Richardson was detained following the customs inspection.

On May 16, 1988, Richardson appeared before United States Magistrate Roberto Schmidt-Monge. Richardson was interviewed by a pretrial services officer, advised of the charges against him, advised of his rights, and given a copy of the complaint. At this time, the magistrate issued a commitment order to detain Richardson without bail and authorized court-appointed counsel for him. On May 17, 1988, John Ward was appointed to represent Richardson.

On May 18, 1988, a detention hearing was held before the magistrate. The government offered the testimony of DEA Agent Richard Smith who recounted the events of the customs inspection at the airport. Ward represented Richardson at the hearing, and Ward cross-examined Smith before the magistrate. The magistrate ordered that Richardson be held without bail pending trial.

On the same date, a grand jury returned a three-count indictment charging the defendant with violations of 21 U.S.C. Secs. 841(a)(1), 952(a), and 955. On May 25, 1988, Richardson was arraigned and pled not guilty to all three counts. Ward represented Richardson at the arraignment.

On July 19, 1988, the case was called for jury trial before United States District Judge Raymond L. Acosta. Before the trial began, Ward made the following request to the court:

MR. WARD: On behalf of the defendant Wesner Richardson, Attorney John Ward and we are ready and we are prepared but we have something, the U.S. Attorney and myself would like to state something to the court before we proceed.

THE COURT: What is it?

MR. WARD: Yesterday, I went to interview my client Wesner Richardson at about two o'clock in the afternoon. At that time he informed me that Counsel Juan Casanovas had visited him previously, and that through the visit of Casanovas he has hired Counsel Samuel Maduro. And that he decided him to be his lawyer from then on, so this attorney understands that he has been discharged from the case by the client and it's brought to your attention.

THE COURT: Who has been discharged?

MR. WARD: Myself, by the client, your Honor. It's very difficult for me to go into these conditions and I propose to your Honor the situation for your determination.

THE COURT: Have you studied the facts in this case and interviewed the client?

MR. WARD: Yes, your Honor.

THE COURT: Let's have the defendant come up here. Mr. Richardson.

THE DEFENDANT: Yes, sir.

THE COURT: Did you hear what Counsel Ward has just stated to the court. Did you hear what he just said?

THE DEFENDANT: Yes.

THE COURT: Would you give us your version of what happened here, that you hired the services of Mr. Maduro?

THE DEFENDANT: Last week, my wife came over here, and she told me she going to hire private lawyer. And three weeks before he came to me, the lawyer came, he say he's going to be working my case. But someone name Casanovas came, Maduro he's the one that is going to work on my case, but he's not here right now. He going out of town, he probably come back today. So when he came yesterday I explained to him that because I don't know.

THE COURT: Have you ever spoken to Mr. Maduro? Have you ever spoken to him?

THE DEFENDANT: Last week, one time.

THE COURT: Where?

THE DEFENDANT: In the jail. He come and he say my wife going to take him for my case. If he's willing to do my case he come back to spoke with me but he doesn't come back.

THE COURT: He didn't come back?

THE DEFENDANT: No.

Trial Transcript at 2-4.

The district court went on to question Ward and Richardson about the request for new counsel. Ward told the court that he had gone to interview Richardson in jail the day before trial and at that time he first learned of Richardson's desire to retain private counsel. Ward said that he tried to contact attorney Samuel Maduro or his associate attorney Juan Casanovas after speaking with Richardson, but Ward was unable to reach either attorney by telephone. Ward told the court that he was familiar with the case and prepared to go forward with the trial.

Richardson told the district court that his wife had contacted Maduro and then Richardson had spoken with Maduro in jail the week prior to trial. According to Richardson, Maduro was to meet with Richardson's wife and discuss the price for representing him. If those matters were settled, then Maduro would return to meet with Richardson in jail. Later, Casanovas returned to tell Richardson that Maduro had received money from Richardson's wife and they would be working on the case. Maduro, however, failed to appear the morning of trial. ²

Richardson told the court that he originally filed an in forma pauperis form for court-appointed counsel because he had no family in Puerto Rico to call or to get money from before the various hearings in front of the magistrate. Richardson also said he was dissatisfied with Ward as his counsel because they had only met to prepare his case once before trial.

After this inquiry, the district court made the following ruling:

The Court finds that the only complaint the defendant has with respect to the representation by Mr. John Ward is that he didn't meet sufficiently with him. But on the other hand, he also admits that Mr. Maduro only met with him once for a very short period. And also Mr. Maduro has not filed an appearance in this case, and even assuming that this case were to be tried tomorrow, as it was originally scheduled for, the Court acknowledges it was moved only one day.

That, even assuming that, Mr. Maduro has not filed an appearance and the Court is hard put to understand how you can file an appearance today and be prepared to try a case tomorrow, when he hasn't even reviewed the file. He hasn't adhered to the standing order of this Court with respect to the submission of jury voir dire questions and instructions.

Also, there is the matter of expenses involved. The government states that there is a chemist that is in transit at this very moment to Puerto Rico, as well as other expenses that are involved, including the jury that has been summoned. And also, that the Court frankly feels that it would be a disservice to the defendant to allow him to utilize the services of Mr. Maduro who hasn't even filed an appearance in this case.

So we're going to proceed with this case.... For the record, also it should be indicated that Mr. Ward who was appointed by the court to represent the defendant has stated that he's ready, willing and able to defend the defendant to the best of his ability.

Trial Transcript at 15-16.

The district court also issued an order to show cause for attorney Maduro to explain why he should not be sanctioned for his conduct. Later that day, Madura and Casanovas appeared before the court to answer questions. Maduro said he first met Richardson sometime the week before trial and, at that time, Richardson told Maduro to contact Richardson's wife for money to retain Maduro. Maduro contacted Richardson's wife who delivered a $4,000 check to Maduro's office three days before trial. Maduro then tried to contact Ward at his office.

The district court then admonished Maduro for "talking to defendants when you have even a scintilla of evidence that they are being represented by another attorney." The court told Maduro never to accept money or proceed in a case before contacting the attorney representing a defendant. The district court then ordered Maduro to deposit the $4,000 check with the court and then to contact Richardson's wife as soon as possible for return of the money.

During the trial, the government presented three witnesses including DEA agent Smith who had testified at the detention hearing. Ward cross-examined each witness and, at the close of the government's case, moved for dismissal arguing that the government had failed to prove knowledge sufficient to prove possession of the cocaine. The court denied the motion. The defense did not present any witnesses, and, following closing arguments, the jury returned a guilty verdict on all three...